Washington State Court Decisions
November 1993 to March 2010
Updated 3/3/10
- 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.)
2010
Pierce County v. Corey, ___ Wn. App. ___ (1/25/2010) [Personnel/tort] Corey resigned her position with the Pierce County Prosecuting Attorney's office after being advised that she would be terminated. She sued, alleging that, among other things, her termination violated a promise that she was only terminable "for cause." She also alleged defamation, negligent dissemination of unsubstantiated information, outrage, and false light. While Corey's position would have been "at will," the court concluded that due to promises that had been made to her at the inception of the employment relationship, she could estop the prosecutor from terminating her at will.. The court also held that there was no tort for the "negligent dissemination of unsubstantiated information" since, while the information would have been "private" under the public disclosure laws, tort law did not recognize a cause of action for the dissemination of confidential information. The court upheld torts for outrage and false light finding that Corey had shown that the employer had told a newspaper that she was under investigation for criminal behavior despite knowledge that an internal investigation revealed little of substance.
Kelly v. Chelan County, ___ Wn.2d ___ (1/7/2010) [LUPA] A conditional use permit, conditioned upon a requirement that all permits be obtained within two years, was appealed to superior court. The court reversed the hearing examiners decision, terminating the permit. The court's decision was appealed, but no stay was requested to stop the running of the two-year period to obtain the required permits. Since more than two years had lapsed, it was argued that the permit conditions were not met. On appeal the Court held that when a trial court denies a permit previously granted by a hearing examiner, that permit's time limit is terminated unless the permit is reinstated on appeal.
2009
Lallas v. Skagit County, ___ Wn.2d___ (12/31/2009) [Tort/judicial immunity] A deputy sheriff was summoned by a judge to escort a person to jail. The prisoner, who was uncuffed, broke free and ran. A private security guard, Lallas, blocked the prisoner's path, was struck by the fleeing prisoner, and was injured. Lallas brought suit against the county, but the county was granted a summary judgment, the court concluding that the deputy sheriff was protected by judicial immunity. The court found that escorting a prisoner to jail is not a judicial function; the deputy was engaging in a ministerial function; judicial immunity did not apply. Judicial immunity even extends to those engaging in judicial conduct under color of judicial authority. However, judicial immunity does not apply when there is no judicial conduct.
Chen v. City of Seattle ___ Wn. App. ___ (12/28/2009) [Tort] Run Sen Liu was injured (and subsequently died) when he was struck by a car while crossing a street at a marked intersection. Other accidents had occurred at the intersection and a pedestrian island, which once was sited in the street had been removed. Liu's widow, Chen, sued the city; the city was granted a summary judgment by the court. Chen appealed. The Court of Appeals reversed. Although relevant to the determination of whether a municipality has breached its duty, evidence that a particular physical defect in a roadway rendered the roadway dangerous or misleading or evidence that a municipality was in violation of a law concerning roadway safety measures are not essential to a claim that a municipality breached the duty of care owed to travelers on its roadways. A trier of fact may conclude that a municipality breached its duty of care based on the totality of the circumstances established by the evidence. Chen provided evidence raising a genuine issue as to whether the city of Seattle failed to maintain in a reasonably safe condition the crosswalk in which her deceased husband was struck by an oncoming car. Therefore, the city was not entitled to summary judgment on the negligence claim.
Conner v. City of Seattle, 153 Wn. App. 673 (12/21/2009) [Landmark Preservation] Conner sought to develop property that had previously been designated as a landmark. Conner argued that the landmark designation applied only to a house on the property and not to the surrounding grounds. The court disagreed; the designation included both the house and the grounds. Conner further contended that that the Landmarks Preservation Ordinance was unconstitutionally vague as applied and that the landmark restrictions on the property constituted an unlawful tax, a regulatory taking, and deprived him of due process. The court concluded that the ordinance was not vague as each property was reviewed individually. There was no unlawful tax or a takings (the city need not prove a compelling interest).
Mellish v. Frog Mountain Pet Care, ___ Wn. App. ___ (12/15/2009) [LUPA} Frog Mountain was granted a variance by the county hearing examiner. Mellish requested reconsideration of the decision. That request was denied and Mellish filed a LUPA action, within 21 days of the reconsideration denial, but over 21 days from the date of the hearing examiner’s decision. Was the LUPA appeal timely? No. The final decision for purposes of LUPA was the decision by the hearing examiner. Was the 21-day appeal period tolled during the period before the motion to reconsider was acted upon? No.
Neighborhood Alliance of Spokane County v. County of Spokane, 153 Wn. App. 241 (12/15/2009) [Public records] Suit involving request for computer records. A computer that may have held information sought by Alliance was wiped clean and, thereafter, although Alliance requested information, the computer was not searched. The adequacy of the agency's search is judged by a standard of reasonableness, construing the facts in the light most favorable to the requestor. An agency fulfills its obligations under the PRA if it can demonstrate beyond a material doubt that its search was "'reasonably calculated to uncover all relevant documents.'" The agency must show that it "made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." The adequacy of an agency's search is separate from the question of whether the requested documents are found. Also, there is no cause of action under the PRA to enforce the re-disclosure of records known by the requesting party to already be in its possession.
Feil v. Eastern Washington Growth Management Hearings Board, 153 Wn. App. 394 (12/3/2009) [Land use/LUPA] The state sought to place a bike/pedestrian trail through an area devoted to agricultural uses. To accomplish the placement, the state applied for approval under the county's recreational overlay district. Adjacent orchardists objected and appealed. The orchardists objected to the overlay district and raised a number of legal and factual challenges to the county commissioners' decision to approve the overlay. The court concluded, however, that the recreational overlay district was not an amendment to the county's comprehensive plan and that, even if it was, any challenge to the comprehensive plan came too late. The court further concluded that the recreational overlay district did not run afoul of state statutes that encourage the preservation of agricultural land. And we conclude that the decision to permit the overlay was amply supported by the findings of the
commissioners, including those they adopted from the hearing examiner.
Nickum v. City of Bainbridge Island, ___ Wn. App. ___ (11/24/2009) [LUPA appeal] Verizon sought to install an antenna on some private property. The city concluded that the project was exempt from SEPA and issued a permit for the tower's construction. Sometime later (about 50 days after the permit was issued), when neighbors discovered construction activity, an appeal was filed with the hearing examiner. The appeal was denied, however, since more than 14 days had elapsed from the date of permit issuance. (Notice of the permit application, SEPA determination, or permit issuance was not required and was not given.) The neighbors then brought a LUPA appeal in superior court. The court dismissed the appeal for lack of standing and on jurisdictional grounds. The court of appeals affirmed, finding that there was no standing since the neighbors had failed to exhaust their administrative remedies by not appealing to the hearing examiner within 14 days or to the court within 21 days of the permit issuance. The court did not permit an equitable extension of time and concluded that LUPA was not available. The appellants claim that they had been denied due process failed, as it too was covered by the LUPA time limits.
Kailin v. Clallam County, ___ Wn. App.___ (11/9/2009) [Shorelines appeal] Does the shorelines hearings board have subject matter jurisdiction to address a reasonable use exception from the County's critical areas ordinance where that ordinance is not a part of the County's shoreline master program? The court concluded that the hearings board did not have jurisdiction.
Citizens Protecting Resources v. Yakima County, ___ Wn.App. ___ (11/5/2009) [Gift of public funds] To deal with a flooding problem that threatened the safety of a bridge, the county acquired land and made a trade to allow the relocation of a privately-owned wrecking yard, located on an oft-flooded island that served as a foundation for a bridge. A challenge was brought, arguing that the transaction was a gift of public funds or a lending of credit and that the swap violated RCW 36.34.330. After losing in superior court, and appeal was brought and the court of appeals affirmed. There was no gifting involved since flood prevention and amelioration is a fundamental purpose of government, and the relocation of the business served that purpose. The transaction did not violate the land swap statute because the statute permits counties to exchange surplus real property for other real property that would be useful to the county; however, that was not the situation in this case since the county needed the property in order to facilitate moving one of the wrecking yards; it was not surplus land. The property was purchased solely for the relocation project.
Kitsap County Deputy Sheriff's Guild v. Kitsap County, 167 Wn.2d 428 (10/29/2009) [Public employment/arbitration] A deputy sheriff was terminated for various violations, including untruthfulness. The determination was considered by an arbitrator, who found that violations had occurred, but that termination was not an appropriate penalty. The court of appeals overturned the decision, however, finding that the decision violated public policy. The supreme court reversed the court of appeals decision, holding that an arbitrator's decision could be overturned by the courts if the decision violated public policy and the public policy is explicit, well defined, and dominant. The arbitrator's decision did not violate such a policy.
Mechling v. City of Monroe, 152 Wn.App. 830 (10/26/2009) [Public records]Mechling sought, among other things, e-mail messages to and from councilmembers, received on personal or business computers; she also requested they be supplied in electronic format. While the city supplied some of the requested documents, it redacted e-mail addresses and did not provide the information in electronic format. Mechling sued and, after the superior court found that the city had complied, appealed to the court of appeals. The court held that the e-mail addresses were not exempt and deferred on the issue of providing records in electronic format, leaving whether it was reasonable and feasible to supply the records in that form to the superior court to decide. The court further advised that a document prepared for a purpose other than or in addition to obtaining legal advice and intended to be seen by persons other than the attorney, does not become subject to the attorney-client privilege merely by being shown to the attorney. And the court held that for those e-mail records which the city withheld, it must provide the name of the author and the recipient of the e-mails.
City of Federal Way v. Koenig, ___ Wn. 2d ___ (10/15/2009) [Public records] Koenig requested judicial records from the Federal Way court; his requests were denied. On appeals the Supreme Court, relying on its decision, Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986), the Court affirmed its conclusion that the Public Records Act does not apply to the judiciary and the legislature has acquiesced to that decision by not modifying the Act.
Post v. City of Tacoma, 167 Wn. 2d 300 (10/15/2009) [Building Code enforcement/LUPA] Post owned a number of properties within the city, some of which were in violation of building codes and standards. Notices were given to correct the deficiencies or to request a hearing. Subsequent notices did not provide for a hearing. Automatic daily penalties and additional infractions were possible if corrections were not made or agreed to schedules were not kept. Assessments in the hundreds of thousands of dollars were made, and Post appealed. Superior court found the appeals untimely under LUPA and sustained the penalties that had been assessed. On appeal, the Supreme Court reversed, concluding that LUPA did not bar the appeal, as enforcement action for these civil violations was required to be considered in municipal court and because the remedy sought was for money damages or compensation. The sections of the enforcement code purporting to authorize the unlimited and unreviewable issuance and enforcement of subsequent civil infractions and penalties without any system of procedural safeguards are unconstitutional on their face and as applied.
Building Industry Association of Washington v. McCarthy, ___ Wn. App. ___ (10/13/2009) [Public records request] The BIAW sought records from Pierce County, including some e-mails that had been destroyed consistent with state retention guidelines. The county provided all of the records it could find, but the BIAW insisted that, since there were two omitted e-mails, undoubtedly there were others. The BIAW provided no evidence at a summary judgment motion, asked for no discovery, and did not seek a continuance. The court, after reviewing affidavits explaining the county's search for the requested records and its retention practices, granted a summary judgment in favor of the county. The BIAW appealed; the superior court's judgment was affirmed.
Stientjes Family Trust v. Via-fourre, ___ Wn.App. ___ (10/12/2009) [LUPA] Decision on issuance of building permit was appealed to the county board of county commissioners. The commissioners reversed an earlier hearing examiner decision and returned the issue to the hearing examiner for additional review (did project comply with critical areas ordinance?). A local jurisdiction's decision concerning a building permit application is final for purposes of LUPA if a party "receive[s] the relief it had requested" and no additional issues remain. Because additional issues in the controversy remained to be decided and appellant might yet prevail, the commissioner's decision was not final. Accordingly, the superior court lacked authority to consider LUPA petition.
Abbey Road Group v. City of Bonney Lake, 167 Wn. 2d 242 (10/8/2009) [Vesting] Abbey Road sought to build a multifamily condominium development. Its representatives met with the city and then later submitted a site plan application. On the day that the site plan application was filed, the city changed the zoning for the area, and the proposed use was no longer available. The city denied the site plan. Following appeals to a hearing examiner, superior court and court of appeals, the supreme court was asked to determine whether the filing of a site plan vested the proposal under the regulations then in place (which would have allowed the development). A divided court, in a plurality decision involving a lead opinion and a concurrence, concluded that vesting occurs when a complete building permit application is made, as provided for both by case law and statute, not at an earlier stage. The majority concluded that the City did not require an approved site plan before it would consider a building permit application.
City of Seattle v. St. John, 166 Wn. 2d 941 (9/10/2009) [DUI and implied consent] The defendant crashed a motorcycle. After investigation, the police determined that St. John may have been under the influence of alcohol at the time of the accident. The police sought a breath test, but St. John refused. Thereafter a warrant was obtained allowing for the taking of a blood sample to test for alcohol. May a driver be required to take a blood test ordered by a warrant after he or she has denied a request to have a breath test taken? Yes. The implied consent statute explicitly allows a police officer to obtain a blood alcohol test pursuant to a warrant, even after a driver refuses a voluntary blood alcohol test. Neither due process nor equitable estoppel requires police officers to inform DUI suspects of the possibility of obtaining a warrant to collect evidence.
Kapo v. Central Puget Sound Growth Management Hearings Board, 152 Wn. App. 190 (9/9/2009) [Interplay of Shoreline Management and Growth Management Acts] Kitsap County, in updating its critical areas ordinance, imposed a 35-foot buffer around the county's marine shorelines. Appeals were made to the growth management hearings board challenging the buffer as either being inadequate or excessive. The hearings board, applying growth management, upheld the buffer but remanded with direction to increase the buffer's size. An appeals was brought in superior court, which upheld the hearings board's decision, and a further appeal was made to the court of appeals. The court of appeals reversed and remanded for consideration of the buffer under the Shoreline Management Act. Which act should control? The Growth Management Act or the Shoreline Management Act? The court, in reaching its decision, followed Futurewise v. Western Washington Growth Management Hearings Board, 164 Wn.2d 242 (2008), a plurality opinion. When following a plurality decision, the holding of the court is the position of the justice(s) concurring on the narrowest grounds. In this instance, the court held that only one plan-- the SMA plan -- can be in effect at one time; accordingly, the Kitsap County critical area ordinance was reversed and the matter remanded to the Board for further remand to the County to plan for the shoreland regions under the Shoreline Management Act.
Vonage America v. City of Seattle, 152 Wn. App. 12 (9/8/2009) [Taxation] Vonage provides telephone service, both intrastate and interstate, by use of VoIP, Voice over Internet Protocol, changing analog messages to digital and then sending the messages over the internet. Seattle taxed a portion of Vonage's income, and Vonage appealed. The court concluded that services like Vonage's are not interstate as a matter f law regardless of the actual service usage; Vonage is subject to the City's telephone utility tax but the assessment must be based on the intrastate component of Vonage's service. Although Vonage's VoIP service is delivered through the Internet and has some similarities to e-mail, it is not an Internet service provider, exempt from tax under RCW 35.21.717. And, as to a requirement for nexus, while there was no evidence that Vonage owned or leased property in Seattle or that it had employees in Seattle during the audit, it obtained a sufficient physical presence in the city by purchasing the right to use telephone lines in Seattle through its affiliate, Vonage Networks, Inc. As to the calculation of the tax, the court concluded that the City must produce substantial evidence that its tax assessment is based on the intrastate component of Vonage's VoIP service, i.e., an estimate of calls initiated and terminated within Washington state. Once that burden is met, it falls on Vonage to demonstrate that the estimate is inaccurate and to establish a more accurate estimate.
City of Spokane v. Rothwell, 166 Wn.2d 872 (9/3/2009) [Jurisdiction of district court judge serving as municipal court judge] Spokane, by agreement with the county, used district court judges as its municipal court judges. The defendant challenged a conviction of the municipal court, arguing that the trial judge was not elected solely by city voters. The conviction was affirmed on appeal and an appeals was taken to the supreme court. The Supreme Court reversed, concluding that the municipal court judge had de jure jurisdiction. The judges were "elected" in the county and, by agreement with the city, rotated as municipal court judges. The judge's appointment as a municipal judge was a direct result of her election and therefore was not inconsistent with former RCW 3.46.063, which required municipal court positions to be filled by election. The election was for a district court office, not full time municipal judge, and therefore the election did not have to be only by ity voters under former RCW 3.46.070.
In re Forfeiture of 1970 Chevrolet Chevelle, 166 Wn.2d 834 (9/30/2009) [Forfeiture of vehicle associated with trade of illegal drugs] Pursuant to RCW 69.50.505, relating to drug trafficking, vehicles can be forfeited if they, among other things, were used in the drug trafficking. Forfeiture is not available if the vehicle owner was an "innocent owner." Here the hearing examiner concluded that the owners should have known of the illicit activities for which their cars were used and were, therefore, not considered "innocent owners" under RCW 69.50.505(1)(d)(ii). On appeal the court reversed, concluding that the term "knowledge" under the meaning of RCW 69.50.505(1)(d)(ii) is satisfied only by proof of actual knowledge.
Morgan v. City of Federal Way, 166 Wn.2d 747 (8/20/2009) [Public records] A municipal judge was alleged to have created a hostile work environment. The city attorney initiated an investigation and notified the judge, seeking cooperation. Although the judge sought to stop the investigation, it was completed and a report was prepared. A local newspaper requested a copy of the investigative report. The judge sought a court order prohibiting the release of the report. Although the court initially prohibited the release, it later lifted the ban and the judge appealed. The Court concluded that the report was a "public record" (prepared, owned, used, and retained by the city). It was not exempt as work product, as when it was prepared, there was no anticipation of litigation. There was no attorney-client privilege because the attorney who prepared the report did not have an attorney-client relationship with the judge. And there was no personal information exemption (privacy) since the items in the report were not "highly offensive" and the judge failed to demonstrate how disclosure would not be in the public interest.
City of Seattle v. Wilson, 151 Wn.App. 624 (8/17/2009) [Traffic/criminal] The City enacted an ordinance that criminalized committing a traffic infraction that results in death or great bodily harm without any requirement that the driver have a culpable mental state. The defendant Wilson failed to yield the right-of-way (which could have been charged as a traffic infraction), resulting in the death of a bicyclist. Upon appeal, the court held that the ordinance violated a state statute [RCW 46.63.020], that prohibits classifying a traffic infraction as a criminal offense; the ordinance was invalid and cannot be enforced.
Grays Harbor Energy v. Grays Harbor County, 151 Wn. App. 550 (8/11/2009) [Property valuation for tax purposes] Is power generating equipment affixed to land in a non-operating power plant taxed as real property or as personal property? The court concluded that by statute the property should be taxes as personal property. RCW 84.12.280 provides in part that "all of the operating property other than lands and buildings of electric light and power companies . . . shall be assessed and taxed as personal property." And RCW 84.12.200(12) provides in part that "operating property" means and includes "all property, real and personal . . . used by the company in the conduct of its operations." These provisions clearly exempt the generators from taxation as real property. The statutes are not only applicable to assessments by the state department of revenue. And the statutes are not unconstitutional; the legislature may adopt statutes that are inconsistent with the common law, treating these assets as personal property, even though they would be treated as real property under common law.
City of Woodinville v. Northshore United Church of Christ, 166 Wn.2d.633, (7/16/2009) [Land use/constitutional law] Does the city's refusal to permit a church to host a homeless tent city violate its state constitutional right to religious freedom and violate the federal Religious Land Use and Institutionalized Persons Act (42 U.S.C. § 2000cc et seq.)? The court held that the City violated the Church's constitutional rights under article I, section 11 when it refused to process the Church's permit application based on a total moratorium on temporary use permits in the area. Rather than seeking to impose reasonable conditions on the Church's project to protect the safety and peace of the neighborhood, the City categorically prevented the Church from exercising what the City conceded was a religious practice. Having reached its conclusion on state constitutional grounds, the court did not consider the federal Religious Land Use and Institutionalized Persons Act issue. Also, the court found that the church was not bound by a 2004 agreement requiring the church to obtain a permit before establishing a new tent city location since the city breached the earlier agreement by refusing to consider a permit application due to the moratorium it had imposed.
Koenig v. Pierce County, 151 Wn. App. 221, (7/13/2009) [Public disclosure] Following his arrest for a matter that was never prosecuted, the defendant Koenig sought from the county sheriff and county prosecutor all of the materials relating to the decision to not prosecute. While some materials were provided by both county departments, the prosecutor's office withheld some records as being work product. Koenig sued. Following a decision favorable to the county, Koenig appealed, and the court upheld the superior court's decision. The court upheld the county's use of the plurality decision in Limstrom v. Ladenburg, 136 Wn.2d 595, 604, 963 P.2d 869 (1998), relating to the withholding of work product and the application of CR 26. The court also found that there was no responsibility for the county to coordinate the responses from the prosecutor and the sheriff. Also the court found that the county had adequately described the records it had withheld.
McAllister v. Bellevue Fireman's Pension Board, 166 Wn. 2d. 623 (7/9/2009) [Retirement benefits] Firefighters who made retirement contributions under the Firefighters' Relief and Pensions-1955 Act retired after firefighter retirement benefits came from the LEOFF retirement plan. The plaintiffs sought to have their retirement benefits calculated under the definitions used under LEOFF. The Court upheld the city's decision to calculate excess payment according to the basic salary under the 1955 Act rather than under LEOFF.
City of Bellevue v. Lee, 166 Wn. 2d. 581, (7/9/2009) [Suspension of driver's license] If a person's driver's license is suspended for failure to appear, respond, failure to pay fine, or otherwise comply with a traffic citation, his or her driver's license, after a 45-day notice period, can be suspended. The driver, however, may request an administrative review. The review involves the department of licenses (DOL) reviewing various documents submitted to it relating to the proposed suspension. There is no in-person or telephone hearing. Lee argued that the review process failed, as it lacked a hearing, failed to provide due process. The court disagreed and concluded that DOL's procedures provide both notice and a meaningful opportunity to be heard. The license suspension was upheld.
Beak, Cummings. Rasmussen and Wingard v. City of Seattle, ___ Wn. App. ___ (6/22/2009) [Public records] Plaintiffs requested "documentation supporting [the city's] asserted inability to implement our suggestions or any of the alternatives to their proposal." When the orally requested documentation was not provided, plaintiffs filed suit under the public records act. The court concluded that the plaintiffs had asked for documentation but were not sufficiently precise to constitute a request for an identified record. The problem was with the ambiguity of the request, not the form of the request.
State v. Immelt, ___ Wn.App. ___ (6/8/2009) [Nuisance/noise] Immelt, mad at some of her neighbors, honked her car horn early in the morning and then later, after having been advised to not do so except for public safety purposes. Having honked her car horn after being warned by a sheriff deputy, Ms. Immelt was convicted. She appealed, arguing that the nuisance ordinance, which prohibited unnecessary honking, violated the constitution and her right of free speach. The court disagreed, finding that the ordinance was presumed constitutional and, in any case, hthe honking of a horn is not per se speech. The ordinance was not vague, and no speach was involved.
Snohomish Regional Drug Task Force, Res. v. Yatin, 150 Wn.App. 387 (6/1/09) [Drug forfeiture] Notice of appearance served on counsel within 90 days of seizure of the properties by recording of the lis pendenses is sufficient written notices under RCW 69.50.505(5), the drug seizure and forfeiture statute. The petitioners were entitled to a hearing to address their rights as others with claimed interests in the property that had been seized.
Spokane Airports v. RMA, Inc., 149 Wn. App. 930 (4/28/2009) [Airports/condemnation] In this instance, the Spokane Airport is jointly run by the city of Spokane and Spokane County through a joint agreement allowing operation through a separate board. Due to FAA requirements, it became necessary to condemn certain buildings (including some used by RMA). The city and county adopted resolutions to condemn RMA's leases, and the joint operating board sued to condemn the leases. Although there were other issues, the court held that the condemnation suit was improperly brought by the joint board; RCW 18.08.200(9) requires such a suit be brought jointly by the municipalities (the fact that the city and county had adopted resolutions was not enough; the suit needed to be brought by both as well).
Brunson v. Pierce County Auditor, 149 Wn. App 855 (4/21/2009) [Revocation of license] Ms. Brunson and two other women performed lap dances at an adult entertainment business, contrary to county regulations. In view of this violation, the county auditor suspended the dancers' erotic dancer license for one year; after the suspension was affirmed by the hearing examiner, the dancers appealed. The county code permitted license suspension for "a specified period of not more than one
year." The auditor expressed the opinion that any violation of the code was serious and warranted a one-year suspension; she could not describe a situation that would warrant a shorter suspension period. The court held that the auditor abused her discretion by failing to exercise the discretion that county code provided to her. The only cure for the abuse of discretion is a remand and a new hearing with instructions that the auditor exercise the allocated discretion. The court further held that use of a "preponderance of the evidence" standard for determining whether there should be a suspension is adequate for this, an occupational license.
Spice and Plexus v. Pierce County, 149 Wn. App. 461 (3/31/2009) [LUPA] LUPA appeal filed and later voluntarily withdrawn. County moved to have LUPA appeal dismissed with prejudice; it was and thirteen months later applellants sought to vacate the dismissal order. Due to passage of time (more than 21 days) and fact that appeal was voluntarily withdrawn, issue is moot and court does not have jurisdiction to vacate dismissal order. Appellant would not be able to refile, even if dismissal vacated, as more than 21 days has elapsed.
State v. Kirwin, ___ Wn.2d ___ (3/26/2009) [Criminal law] A person was arrested for littering and, subsequent to his arrest, a search was made of the automobile in which he was riding; drugs were found and the defendant was charged with a drug offense. The defendant argued that the city ordinance making littering a crime (instead of an infraction, as it is under state law) was preempted by state law and thus the search following arrest was improper. The Court disagreed. Both the state law and the city ordinance addressed the same act and thus was not in conflict with state law; additionally, the staate law did not preempt local regulation.
North Pacific Design v. City of Gig Harbor, ___ Wn. App. ___ (3/2/2009) [Land use/zoning] A developer applied for a preliminary plat and planned residential development (PRD). Although the PRD regulations provided a means to increase density in a PRD, the developer chose to increase density by seeking a conditional use permit for the underlying zone. A conditional use permit (CUP) would allow a possible density increase from 8 dwelling units per acre to 12 dwelling units per acre. The city’s hearing examiner approved the plat, the CUP (for 11.75 dwelling units), and the PRD. The city appealed the hearing examiner decision, arguing the PRD regulations described the exclusive means to increase density in a PRD, and because a PRD rezoned the property, the developer was required to either follow the development standards of the underlying zone or those standards in the PRD regulations. The court disagreed, concluding that there was no rezone if the density allowed by the underlying zoning "expressly permitted" the density sought. The court found that the regulations relating to density in the PRD and underlying zone could be harmonized. The City argued that the PRD prohibited any increase in density in this particular case because it was inconsistent with the underlying comprehensive plan designation for the property, but the court found the increase in density to be allowed by the zoning code.
Samson v. City of Bainbridge Island, 149 Wn. App.33 (2/24/2009) [Shorelines Management] The city amended its shorelines master program (SMP) to prohibit construction of new single-use private docks and to limit dock construction in Blakely Harbor to two joint-use docks, one community dock, floats, and buoys. Samson appealed the city's actions, arguing, among other things, that the city's amendments were not consistent with state guidelines, the city's SMP and comprehensive plan, and violated the public trust doctrine. The hearings board ruled against Samaon and, on appeal, the court of appeals affirmed. The state guidelines that Samson argues are inconsistent with the city's amendment were not yet in effect when Samson brought the appeal. The city's amendments protected Blakely Harbor, a harbor that is less developed than other shorelines of the city and the city amendments did not prohibit all forms of access to the harbor. In addition, the amendments protected the harbor, which is consistent with the public trust doctrine,
Parmelee v. Clark, ___ Wn. App. ___ (2/23/2009) [Public records] Prison inmate made public records request to Department of Corrections, but not to person designated to accept requests. Because the two record requests were not submitted to the designated public disclosure coordinator, the agency may not be penalized for failing to respond to them in a timely fashion.
Rental Housing Association v. City of Des Moines, 165 Wn. 2d. 525 (1/22/2009) [Public records] When a requesting
party is dissatisfied with an agency's response to a records request, it may bring an action under the PRA but must do so "within one year of the agency's claim of exemption or the last production of a record on a partial or installment basis." RCW 42.56.550(6). When does that one-year period begin? Rejecting the argument that that a "claim of exemption" starts the clock, the court finds that the period begins when a "privilege log," is issued. To satisfy the privilege log requirement, it appears that a response denying a record request must (1) adequately describe individually the withheld records by stating the type of record withheld, date, number of pages, and author/recipient or (2) explain which individual exemption applied to which individual record rather than generally asserting the controversy and deliberative process exemptions as to all withheld
documents.
Hale v. Wellpinit School District, ___ Wn. 2d. ___ (1/15/2009) [Personnel – Disability ] A challenge was brought to determine that a legislative amendment defining the term “disability” could be made retroactively or whether such retroactive application violated the separation of powers doctrine. (The legislative amendment applied to cases arising before the supreme court adopted in a decision the federal definition for what constitutes a “disability.”) The Court held that the retroactive application did not violate the Separation of Powers Doctrine.
Yousoufian v. Office of Ron Sims, 165 Wn. 2d. 429 (1/15/2009) [Public records] This decision provides the latest chapter in a public records case that has spanned over 11 years. This particular decision involves the calculation of the penalty to assess when a court determines that a records request response has been improperly delayed or denied. The trial court, after reviewing the record, concluded that the penalty should be $15 per day (set at the lower end of the statutory scale of $5 to $100 per day). A majority of the court, in a divided decision with five opinions, concluded that the trial court had abused its discretion in setting the penalty at $15 (one of the opinions suggested the penalty would be more appropriately set near $100). In sending the case back to the trial court, the majority provided a list of factors to consider in deciding the amount of penalty. Mitigating factors are: the lack of clarity of the request; an agency's prompt response or legitimate follow-up inquiry for clarification; good faith, honest, timely, and strict compliance with all the procedural requirements and exceptions; proper training and supervision of personnel; reasonableness of any explanation for noncompliance; helpfulness of the agency to the requestor and the existence of systems to track and retrieve public records. Aggravating factors that increase a penalty are a delayed response, especially in circumstances making time of the essence; lack of strict compliance with all th procedural requirements and exceptions; lack of proper training and supervision of personnel and response; unreasonableness of any explanation for noncompliance negligent, reckless, wanton, bad faith, or intentional noncompliance with the Public Records Act; dishonesty; potential for public harm, including economic loss or loss of governmental accountability11; (8) personal economic loss; and a penalty amount necessary to deter future misconduct considering the size of the agency and the facts of the case.
Spokane County v. City of Spokane, 148 Wn.App. 120 6/2009) [GMA] The Growth Management Hearings Board does not have statutory authority to require a county to establish a "joint planning area" with the City of Spokane within an established urban growth area.
2008
City of Tukwila v. Garrett, ___ Wn. 2d ___ (11/26/2008) [Criminal law/jury selection] Tukwila used the King County court system for selection of a jury pool; in this instance, jurors were selected from three zip codes that included an area roughly equivalent to the city's boundaries. The defendant objected. The Court held that a valid oral agreement authorized King County Superior Court to provide jury selection services for Tukwila Municipal Court, and that selecting the jury pool from the area encompassed by the three zip codes that applied to the City of Tukwila substantially complied with RCW 2.36.050.
City of Union Gap v. Washington State Department of Ecology, 148 Wn. App. 519 (11/13/2008) [Water rights] A private company bought property, including associated water rights. The company intended to sell the water rights to the city, and it entered into negotiations with the city for that purpose. However, while the company's intent was clear, and the city expended funds in anticipation of the purchase, the water rights went unused for over five years. The court concluded that the water rights had been relinquished. The owner of a water right relinquishes that right to the state if the water right is not used beneficially for five years. But the owner does not relinquish that right, despite nonuse, if it is claimed for some "determined future development" or for "municipal water supply purposes." Here, a developer bought water rights intending to sell them to a city. The court concluded that the sale did not take place within the required five-year period before the developer relinquished the water rights. Nor did the developer satisfy the requirements of either the "determined future development" or the "municipal water supply purposes" exceptions to the general rule of relinquishment after five years of nonuse of the water rights.
Broyles v. Thurston County, 147 Wn. App. 409 (11/12/2008) [Personnel] Three female deputy prosecuting attorneys brought suit against the county, alleging hostile work environment and retaliation. The plaintiffs prevailed and the county appealed. There were numerous issues on appeal; however, one argument made by the county was that the county could not be held liable for the actions of an independently elected official, the county prosecuting attorney. The court disagreed. A county is "an artificial being, invisible, intangible, and existing only in contemplation of law," which by necessity "must act through its officers, directors, or other agents." The County is liable for its prosecuting attorney's discriminatory employment acts. Especially in the context of employment discrimination, either the state or local government must be responsible for the actions of the officers and agents that exercise governmental powers and act on the government's behalf. While the county should not be held liable for actions a prosecutor takes while representing the State, such as in filing or trying criminal cases, it is liable when the prosecuting attorney is acting for the county when performing administrative tasks, such as in making
personnel decisions.
Isla Verde International Holdings v. City of Camas, 147 Wn. App. 454 (11/12/2008) [Land use/takings] As a condition of development, the city required Isla Verde to dedicate 30 percent of its property to open space. Isla Verde appealed and eventually the Supreme Court concluded that, without a demonstration that the set aside related to the proposed development, the open space requirement represented an unlawful violation of RCW 82.02.020. Isla Verde filed a LUPA action against the City for damages under RCW 64.40.020, asserting that the city knew or reasonably should have known that its imposition of a mandatory 30 percent open-space set-aside was "unlawful" within the meaning of RCW 64.40.020(1), thus entitling it to damages, costs, and attorney fees as a matter of law. The superior court granted a summary judgment in Isla Verde's favor. On appeal, the court held that there were significant issues of material fact that required resolution by trial. The Supreme Court's decision in Isla Verde was the first time set asides were found in violation of the law; even afterward it was unclear whether similar requirements were violations of the law. Accordingly, there were issues of fact that needed to be resolved in trial, not as a matter of law.
Parrell-Sisters MHC v. Spokane County, 147 Wn. App. 356 (11/6/2008) [Utility charges] The plaintiff operates a mobile home park. The county charged the mobile home park a capital facilities rate fee for the presumed impact the septic system used by the mobile home park had on an aquifer. Parrell-Sisters sued, but the trial court ruled in the County's favor, finding that the charge was a regulatory fee. On appeal, the decision was reversed. The court applied RCW 35.67.370, which it found to be unambiguous, and which prohibits local governments "from requiring existing mobile home parks to pay a sewer service availability charge, standby charge, consumption charge, or any other similar types of charges associated with available but unused sewer service." The County The County asserted that the fee charged the mobile home park for the impact of its septic system on the aquifer, not for unused sewer service. The Court disagreed, finding that the charge violated the statute; the CFR fell within the broad language of the statute prohibiting charges associated with available but unused sewer service.
Fisk v. City of Kirkland, 164 Wn. 2d 891 (10/23/2008) [Tort liability] The Fisks were driving an RV through the city when their vehicle caught on fire. Responding firefighters were faced with a fire hydrant that lacked sufficient pressure for firefighting purposes. By the time a second hydrant was opened, the Fisk vehicle had suffered significant damage. The Fisks sued, citing negligence. The trial court found no city duty and dismissed the claim; an appeal followed. The court found that the city water department was a "water company" and thus covered by RCW 80.28.010 which, arguably, made the city liable for its failure to provide a sufficient supply of water. However, the court concluded that the statute only covered the furnishing of water "for hire," and not the water provided for fire suppression. And the state has not impliedly created a duty. Thus, the court held that when a municipality provides water for fire suppression as a service to the public, the municipality is not liable in tort for negligence for the increased fire damage because of insufficient water pressure for fire suppression purposes.
Wilson v. City of Seattle, 146 Wn. App. 737 (7/21/2008) [Tort liability] The plaintiff was injured when she fell into a manhole located in the parking strip area of her property (the manhole cover had somehow flipped, opening the manhole). The superior court granted summary judgment in the City's favor and, on appeal, the court affirmed. A municipality has a duty to maintain its parking strips in a reasonably safe condition. What constitutes a reasonably safe condition on a parking strip is not the same as it is for a sidewalk because a sidewalk's purpose is mainly pedestrian use, while a parking strip
frequently contains utility poles and meters, fire hydrants, trees, grass, and other ornamentation. Manholes in parking strips are common, and in this instance the cover was open and obvious. No one had ever complained about the open manhole; the city had no notice. The plaintiff failed to prove that the city had breached any duty.
Lane v. City of Seattle, 164 Wn. 2d 875 (10/16/2008) [Finance/Utilities] Is it legal for the city water utility customers to pay for fire hydrants? No; provision of hydrant service is a governmental function. Following a decision regarding the payment for street lights, Seattle had its general fund pay for hydrant service, paying the cost from proceeds of a utility tax it levied on its water utility. The utility then raised its rates to pay for the tax. As to earlier (pre-tax) charges, Seattle must make refunds to its affected customers, plus interest. Furthermore, other jurisdictions who have secured hydrant service must pay Seattle for that service.
Navlet v. Port of Seattle, ___ Wn. 2d ___ (10/16/2008) [Personnel: vesting of retirement benefits] The port's collective bargaining agreement provided for retirement benefits. After the agreement expired, the port ceased paying into the retirement benefit plan and the plan stopped providing benefits to current and retired employees. The Court held that state law governs the vesting principles for retirement welfare benefits conferred through a collective bargaining agreement with a state employer. Applying the applicable vesting principles to the CBA, we further hold that the Port is obligated to provide retirement welfare benefits for life to Appellants who have satisfied the eligibility requirements to receive such benefits. Retirement welfare benefits conferred in a collective bargaining agreement constitute deferred compensation where the parties negotiate for such benefits as part of the total compensatory package. The compensatory nature of the benefits creates a vested right in the retirees who reached eligibility under the terms of the applicable collective bargaining agreement. Once vested, the right cannot be taken away and will survive the expiration of the agreement. The Court further held that the obligation to provided vested retirement welfare benefits does not require the Port to revive and fund the Welfare Trust. While the Port used the Welfare Trust as the tool to deliver its obligation to provide benefits, it may continue to fulfill its obligations through another vehicle that provides a sustainable way of delivering benefits reasonably commensurate with the level of benefits promised in the collective bargaining agreement.
City of Arlington v. Central Puget Sound Growth Management hearings Board, 164 Wn. 2d 768 (10/9/2008) [GMA] The Supreme Court affirmed an earlier Court of Appeals decision, and adopted the decision as its own. The court upheld Snohomish County's amendment of its comprehensive plan, concluding that the area in question was properly redesignated from agricultural to urban commercial.
Danny v. Laidlaw Transit Services, ___ Wn. 2d ___ (10/3/2008) [Termination of employment and public policy] An employee suffered disciplinary action and was later terminated after she took time off work to deal with domestic violence issues facing her family. The plaintiff sued in federal district court, and that court asked the state supreme court the following (reformulated) question: Has the State of Washington established a clear mandate of public policy of protecting domestic violence survivors and their families and holding their abusers accountable? The supreme court answered in the affirmative, stating: "Washington State has unequivocally established, through legislative, judicial, constitutional, and executive expressions, a clear mandate of public policy of protecting domestic violence survivors and their families and holding abusers accountable."
Brutsche v. City of Kent, ___ Wn. 2d ___, (10/2/2008) [Inverse condemnation] While searching for drugs pursuant to a search warrant, police broke doors and door jambs. Is property damage inflicted during the execution of a search warrant compensable? Liability in trespass may arise if, by intentionally doing an act that a reasonable person would not regard as necessary to execute the warrant, the police damage property, or if the warrant is executed in a negligent manner, resulting in property damaged. Although a trespass action is a permissible cause of action, summary judgment for the city's was properly granted because, as a matter of law, on the evidence submitted; the officers did not exceed the scope of their privilege to be on the property to execute the search warrant. The Court also concluded that the plaintiff, Brutsche, was not entitled to assert a takings claim.
American Legion Post No. 149 v. Department of Health, ___ Wn. 2d ___ (9/11/2008) [Health regulation/No Smoking] Do "no smoking" regulations apply to private facilities that are places of employment? A divided supreme court (5 to 4) has found that they do and that such regulations are not unconstitutional. If a facility is a "place of employment," regardless of whether it is a "public place," smoking is prohibited Thus, the exception for private facilities is an exception to the definition of a "public place" and does not apply to the prohibition against smoking in "any place of employment." The court also concluded that the American Legion lacks representational standing and is precluded from asserting that the Act violates its members' liberty interests without due process of law. Does the regulation violate American Legion's right to privacy? Because there is not a fundamental right to smoke, there is no privacy interest in smoking in a private facility. Nor does the regulation violate the right to association. Since the regulations are rationally related to protecting public health, they do not violate due process or article I, section 7 of the state constitution. Smoking inside a place of employment is not a fundamental right of citizenship and, therefore, is not a privilege. Because there is no privilege involved, the court held there is no violation of article I, section 12. The regulations were sufficiently definite to overcome a void-for-vagueness challenge.
First Pioneer Trading Co. v. Pierce County, 146 Wn. App. 606 (9/3/2008) [Zoning] The plaintiff sought to continue a steel fabrication business on property it owned. The county denied the request, indicating that the continued use was not allowed under the zoning code and it was not a lawful preexisting use. The hearing examiner ruled against First Pioneer, as did the superior court, and on appeal the court affirmed. First Pioneer failed to demonstrate that it had used the property for industrial uses at the time the county's zoning went into effect, plus First Pioneer failed to obtain a conditional use permit at the time, which would have allowed a lawful use to continue. To prevail in keeping a nonconforming use, an applicant an applicant has initial burden to prove that (1) the use existed before the county enacted the zoning ordinance; (2) the use was lawful at the time; and (3) the applicant did not abandon or discontinue the use for over a year. First Pioneer failed to do so.
Lakeland v. City of Bonney Lake, 147 Wn. App. 64 (9/3/2008) [Development charges] A developer challenged the city's water system development charge. On appeal, the court voided the city ordinances, concluding that the city adopted the ordinances based on outdated and incorrect numbers.. The court instructed that the City had the burden of satisfying RCW 35.92.025 by providing reasonable charges on equitable shares of the cost of the system and that its decision could not be arbitrary. While an expert opinion is permissible in support of the development charge regarding information and data that was before the City when it adopted the ordinance, new methodologies (that is, methodologies prepared after the ordinance has been adopted) are not relevant to the court's consideration whether the rates were reasonable when adopted.
In re Recall of Davis, 164 Wn. 2d 361, (8/14/2008) [Recall of officer] A port commissioner signed an agreement providing for severance pay for the port's departing chief executive officer. A citizen sought to recall the commissioner for taking this action outside a public meeting. The Court inferred from the record that the commissioner understood her duties as a port commissioner and the legal necessity of voting in public session before potentially obligating the port in any monetary agreement, and, for purposes of recall, intentionally acted outside the scope of these duties by signing an agreement. The Court further found that the recall petition was legally sufficient in charging the commissioner with an act of malfeasance by signing the agreement which had the potential effect of obligating the Port of Seattle to pay the outgoing employee. Additionally, the Court found that the payment was not voted on or approved by the port at a regularly scheduled public hearing and thus concluded charge one of the ballot synopsis is legally sufficient.
Thurston County v. Western Washington Growth Management Hearings Board, 164 Wn. 2d 329, (8/14/2008) [GMA]. A party may challenge a county's failure to revise a comprehensive plan only with respect to those provisions that are directly affected by new or recently amended GMA provisions, meaning those provisions related to mandatory elements of a comprehensive plan that have been adopted or substantively amended since the previous comprehensive plan was adopted or updated, following a seven year update. If a county fails to revise its comprehensive plan to comply with new or amended GMA requirements, a party must be able to challenge the comprehensive plan or GMA amendments. A party may challenge a county's failure to revise its UGA designations during a 10 year update only if the OFM population projection for the county changed. A county's UGA designation cannot exceed the amount of land necessary to accommodate the urban growth projected by OFM, plus a reasonable land market supply factor. "[A] market factor represents the estimated percentage of net developable acres contained within a UGA that, due to idiosyncratic market forces, is likely to remain undeveloped over the course of the twenty-year planning cycle." A Board should not reject urban densities based on a bright-line rule for maximum rural densities, but must consider local circumstances and whether these densities are not characterized by urban growth and preserve rural character. The GMA does not dictate a specific manner of achieving a variety of rural densities.
Futurewise v. W. Wash. Growth Mgmt. Hearings Bd. 164 Wn. 2d 242 (7/31/2008) [GMA and Shorelines Management Act] Does the Growth Management Act apply to critical areas located in a city's shoreline master plan until the city updates its master plan under the Shorelines Management Act? No. The state legislature made it clear that critical areas within the jurisdiction of the Shorelines Management Act (SMA) shall be governed only by the SMA.
Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn. 2d 199, (7/31/2008) [Public records disclosure] The court, on a divided vote held that the identities of public school teachers who are subjects of unsubstantiated allegations of sexual misconduct are exempt from disclosure under public disclosure act. Also, letters of direction must be released to the public, but where a letter simply seeks to guide a teacher's future conduct, does not identify an incident of substantiated misconduct, and the teacher is not subject to any form of restriction or discipline, the name of the teacher and other identifying information must be redacted.
West v. Port of Olympia, ___ Wn. App. ___ (7/21/2008) [Public disclosure] The port was requested to furnish a copy of a lease it had entered into with Weyerhaeuser. The request was denied for several reasons, including the “deliberative process” exemption. However, the lease had been approved, so that exemption no longer applied. The records could not be denied just because the port would enter into other leases and the lease in question could affect those subsequent negotiations. Since the lease had been approved, the exemption no longer applied.
O’Neill v. City of Shoreline, ___ Wn. App. ___ (7/21/2008) [Public disclosure] A councilmember/deputy mayor referenced an e-mail she had received during a council meeting. O’Neill requested a copy of the e-mail. However, the electronic record of the e-mail was altered through the removal of the heading (To/From). O’Neill sued to obtain the e-mail. The court concluded that the record was a public record, even though it had been received by the councilmember on a private computer. Although O’Neill had been furnished a paper copy of the e-mail, she had requested the metadata. The court found that the metadata fell within the definition of a public record.
Group Health Cooperative v. City of Seattle, 146 Wn. App. 80 (7/21/2008) [Business and occupation taxes] Are premium payments made by customers to the Cooperative (a HMO), as well as payments made by the federal government from the Federal Employee Health Benefits Fund (FEHBA) subject to the city’s business and occupation tax? RCW 48.14.0201(7), precludes Washington municipalities from assessing local taxes on health care premium payments made to HMOs. The City had contended that its method of calculating the "taxable portion" of Group Health's premium revenue was not, in fact, a tax on health care premiums because some portion of Group Health's premium revenue is necessarily spent on the direct provision of health care services by Group Health employees. The court found that the legislature did not intend to preempt the ability of municipalities to impose excise or privilege taxes on "health care services directly delivered" by HMOs that are not covered by the prepaid benefit plans purchased by HMO customers. Further, the FEHBA provides that neither states nor municipalities may impose any tax on FEHBF payments.
Swineheart v. City of Spokane, ___ Wn. App. ___ (7/15/2008) [Recreational immunity statute] The plaintiff was injured when he slid down a large slide into a sawdust pit that did not have adequate sawdust. He sued for his injuries. The city argued that it was immune from liability under the recreational immunity statute. The plaintiff argued that the lack of fill material was a latent condition, which took the injury outside the immunity statute protection. On appeal the court held that the condition of the playground fill was obvious to park visitors. The City was entitled to the benefit of immunity under the recreational use statute.
City of Spokane Valley v. Spokane County, 145 Wn. App. 825 (7/15/2008) [Disposition of county roads upon annexation of area into city] Spokane County purchased railroad right-of-way, dedicated the land to highway purposes, and developed a road on a portion of the right-of-way. This area became part of the City of Spokane Valley upon the incorporation of that city. By statute, county roads revert to a city upon incorporation. Does a city receive only the improved roadway, or the entire right-of-way? The court held that the unimproved right-of-way does not meet the definition of "county road" and, thus, did not revert to the City under RCW 35.02.180. Additionally, it held that the right-of-way fell within the exemption under RCW 36.87.090 for properties purchased by deed.
City of Port Angeles v. Our-Water Our-Choice, 145 Wn. App. 869 (7/15/2008) [Power of initiative] The city determined that fluoride should be added to its water; a citizens committee objected and filed an initiative to prohibit the addition of fluoride. The trial court rejected the initiative, which decision was appealed. The court of appeals affirmed the trial courts decision. First the court concluded that a preelection review of the initiative was permitted since a local initiative must be consistent with federal and state law. The court held that the issue at hand was administrative in nature and related to a power given to the city council, rather than "to the city," and thus was not subject to an initiative.
Citizens Alliance for Property Rights v. Ron Sims, 145 Wn. App. 649 (7/7/2008) [Does county's limitation on land clearing of rural property violate RCW 82.02.020?] The county adopted clearing and grading limitations that, for rural residential properties, could limit clearing and grading up to 50 percent of the property. Citizens Alliance challenged the limitations, arguing that they amounted to a violation of RCW 82.02.020. While the county prevailed in superior court, the decision was reversed on appeal. The court concluded that the ordinance imposes clearing requirements that are an in kind indirect "tax, fee, or charge" on development, in violation of the statute and that the county failed to prove that the regulation fell within one of the recognized statutory exceptions. There was no persuasive claim that the variation in clearing restrictions provided by the county ordinance proportionally related to proposed development, a necessary element to satisfy the statutory exception. The county ordinance imposes a uniform requirement for cleared area on each lot, unrelated to any evaluation of the demonstrated impact of proposed development.
Vergeson v. Kitsap County, 145 Wn. App. 526 (7/1/2008) [Negligence; failure to remove arrest warrant from files] The plaintiff was arrested for an arrest warrant , one that had been issued to an alias, that had been quashed by a court. She sued, arguing that the county (and a city) had been negligent in its failure to remove the warrant from its record system. On appeal, the court held that the public duty doctrine applied and the plaintiff failed to establish an exception; and, in the alternative, even if the County and City owed an individualized duty to the plaintiff, she failed to show that the County and the City did not exercise ordinary care.
Renner v. City of Marysville, 145 Wn. App. 443 (6/30/2008) [Claim statute] Renner was fired by the city. He sued, arguing wrongful termination. Prior to filing his lawsuit, however, he filed a claim with the city, as required by RCW 4.96.020, on a form supplied by the city. Later the city challenged Renner's claim, arguing that he had failed to list his place of residence for the six months prior to filing his claim, and Renner failed to state the amount of damages sought. The court rejected the city's arguments, finding that Renner had filled out the form he had been supplied by the city, and the city itself, through its personnel records, could determine his place of residency. As to the amount of damages, the court determined that the city would be able to generally determine Renner's damages, based upon its personnel records.
Coffey v. City of Walla Walla, 145 Wn. App. 435 (6/26/2008) [Appeal of comprehensive plan amendment] The city amended its comprehensive plan but did not change its zoning for a newly annexed area. The neighbors appealed the comprehensive plan amendment to superior court. On appeal the Court held that the superior court lacked jurisdiction to consider the appeal; the appeal should have been made to the Growth management Hearings Board.
Comcast v. City of Seattle, 164 Wn. 2d 35, (6/26/2008) [Taxation of cable services] Comcast provides high-speed Internet service within the city. The city maintained that it could tax such service as a telephone utility, imposing a six percent tax. Comcast disagreed, and the Court held that under the plain language of RCW 35.21.717 (a city or town may not impose any new taxes or fees specific to internet service providers) the city could not impose the telephone utility tax rate. Network telephone service does not include cable Internet service. The Court added "a telephone business offering Internet services cannot be charged a telephone tax for those services, but may still be charged a telephone tax for providing telephone services -- just as Comcast may still be charged a cable television tax for providing cable television."
Southwick v. Seattle Police Officers John Does, 145 Wn. App. 292 (6/23/2008) [1983 Action] Southwick was arrested by the Seattle Police. Southwick may have been injured during the time of his arrest, but the extent of his injury (collapsed lung) was not known for several days. Southwick sued the city under a federal 1983 action. The lawsuit was not filed until after the running of three years; prior to the filing of the lawsuit, however, the plaintiff filed a claim against the city and then waited 60 days to file suit. The lawsuit was dismissed as being untimely. Southwick contended that the statute of limitations was tolled during the 60-day claim filing period. On appeal the court affirmed the decision dismissing the lawsuit. There is no requirement that a claim be filed for a 1983 action, followed by a 60-day waiting period. Accordingly, the statute of limitation was not tolled and the suit failed for being filed after the statute of limitations had run.
City of Wenatchee v. Owens, ___ Wn. App. ___ (6/19/2008) [Authentication of an ordinance] The city's gambling tax ordinance, although it was signed by the mayor and city attorney, filed with the county, and codified, was not authenticated by the city clerk. Owens challenged the validity of the ordinance. The court held that the City clerk's duty to attest to or authenticate the Ordinance, pursuant to RCW 35A.12.130, was entirely ministerial. As a result, the clerk's failure to comply with the attestation requirement of RCW 35A.12.130 did not invalidate the Ordinance.
Humbert v. Walla Walla County, 145 Wn. App. 185 (6/19/2008) [Appeal of hearing examiner's decision on conditional use permit] A hearing examiner approved a conditional use permit for the operation of a rock quarry after extending a hearing to receive comments from the state, approving agreed to conditions between the applicant and the state, and limiting the approval to the first phase of the quarry operation. The applicant appealed. The court upheld the examiner's decision, concluding that the examiner could extend the time of the hearing to obtain comment from the state. It denied the appeal as to the conditions imposed, finding that the examiner was merely approving conditions the applicant had agreed to, applying the invited error doctrine; there also were specific impacts that would justify the conditions, regardless of the invited error doctrine. It was not error to approve the first phase of the operation; the examiner could have denied the project altogether. Conditions were only agreed to for the first phase and the applicant did not provide mitigation plans for the future phases.
Milestone Homes v. City of Bonney Lake, 145 Wn. App. 118 (6/17/2008) [Subdivision approvaL] Milestone sought to subdivide property it owned into 25 lots. However, the property it owned did not have sufficient area to make the proposed division and still meet city density requirements. To address this problem, Milestone included lots that were owned by others and had previously been approved as part of another subdivision. The city council did not approve the subdivision, but the superior court ruled in Milestone's favor. After appeal, the court reversed, holding that the city's ordinance was not ambiguous and that the proposed plat did not meet the city's code. Even if the code was ambiguous, the court would have ruled in the city's favor, giving preference to the council's interpretation and its intent to maintain larger lot sizes.
Keep Watson Cutoff Rural v. Kittitas County, 145 Wn. App. 31 (6/5/2008) [LUPA appeal] Keep Watson Cutoff Rural ("KWCR") filed a LUPA appeal against the county's decision to give a developer conditional approval to proceed with a cluster plot. RCW 36.70C.070(4) requires a party filing a LUPA petition attach a copy of the decision being appealed to the petition.; KWCR failed to do this and the county moved to have the appeal dismissed. A superior court judge granted the motion to dismiss, citing lack of jurisdiction because of KWCR failure to attach a copy of the decision being appealed. On appeal, the court of appeals reversed, concluding that while service and filing requirements are jurisdiction, the elements of a LUPA petition, even though statutorily required, are not jurisdictional requirements that divest a superior court of
jurisdiction if not met. Additionally, KWCR had substantially complied with the requirements.
Pierce County v. State of Washington 144 Wn. App.783 (5/28/2008) [Mental health care] The Court holds that the State Department of Social and Health Services (DSHS) is financially responsible for long-term care patients and that the DSHS incorrectly withheld liquidated damages from payments to the County when the County exceeded the bed space Western State Hospital had allocated to it. The Court also held that 2006 legislation (amendments to chapters 71.05 and 71.24 RCW) was constitutional. The Court also held that the County cannot count Western State Hospital's patients in meeting its 85 percent short-term care requirement and that the DSHS did not force the County to use Medicaid funds for non-Medicaid patients. Finally, the Court held that the County was entitled to prejudgment interest on the withheld liquidated damages award, but not the long-term care damages. (This is a long---70 pages---and somewhat complicated decision; interested persons are encouraged to review the case itself.)
G-P Gypsum Corporation v. Washington State Department of Revenue, ___ Wn. App. ___ (5/20/2008) [Application of city use tax to natural gas]. Gypsum acquired natural gas at several at several locations outside of Tacoma for use within the city of Tacoma. Tacoma's utility tax was applied to Gypsum's purchase of gas. Gypsum argued that it should not be taxed for the use of the gas within Tacoma, since it first exercised dominion and control over the natural gas outside the city. The state argued that the tax applied in Tacoma, since that was the location where the gas was actually used in the manufacturing process. Citing the statute, the court held that the tax applied at the location where Gypsum first exercised its control over the tax, and that was outside the city.
West v. Thurston County, ___ Wn. App. ___ (5/13/2008) [Public disclosure] West sought copies of outside legal counsel billings for legal work performed for the county in the defense of a lawsuit. The county initially denied the request but, after a lawsuit was filed to force disclosure, provided redacted copies relating to the first $250,000 of billings (the extent of the county's deductible). The county argued that it did not have the rest of the billings and that the billings it did have were exempt as records relevant to a controversy (RCW 42.56.290). The court of appeals reversed the trial court, referencing 2007 legislation which clarified the availability of billing information (RCW 42.56.904): billings should be made available except as to work product which would include factual information which is collected or gathered by an attorney, as well as the attorney's legal research, theories, opinions, and conclusions. The court applied the legislation retroactively and found that the county could not avoid liability for the failure to provide copies simply by waiting to furnish the records until after a lawsuit was filed.
Matia Contractors v. City of Bellingham, 144 Wn. App. 445, (5/5/2008) [Claims statute] While there is a more recent court of appeals case to the contrary, the court followed the supreme court decision, Wilson v. City of Seattle, 122 Wn.2d 814 (1993), and held that the claim filing statute, chapter 4.96 RCW, applies only to tort claims. The court's decision reversed the trial court, which had concluded, based upon an earlier court of appeals decision, that decided that the claim filing requirements of chapter 4.96 RCW apply to all claims for money damages. Until changed by the supreme court, the holding in the Wilson decision stands.
Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185 (4/24/2008) [Public records disclosure] Three cities by interlocal agreement formed an animal control agency. That agency then contracted with a private business for the furnishing of animal control services. A citizen, citing the public records act, sought euthanasia records from the private business and from one of the cities. The business denied the request, indicating that it was not a public agency; the city denied the request, indicating that it did not possess the records sought. A lawsuit followed, and the trial court agreed with the business/city. On appeal, the court reversed. Applying and balancing factors from a four-part test ((1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or
regulation; and (4) whether the entity was created by the government), the court reversed. Some of the employees of the business took oaths as animal control officers, and they performed police poser duties, such as euthanizing animals. The funding was primarily governmental, and the business had to follow some procedures set out by the interlocal member agencies. While the business was not established by government, balancing the four criteria led the court to conclude that the business/agency was covered by the public records act.
Lawson v. City of Pasco, 144 Wn. App. 203 (4/24/2008) [Code enforcement/land use regulation] Lawson allowed recreational vehicles to park in his residential mobile home park, contrary to city ordinance. Lawson was issued a violation notice and was ordered to remove them from his park. Lawson admitted to being in violation of the city ordinance, but
maintained that state law -- the Manufactured/Mobile Home Landlord- Tenant Act, ch. 59.20 RCW -- preempted the city ordinance because the state law authorizes, if not requires, recreational vehicles used as a primary residence to be allowed in mobile home parks. While the state legislature intended to act in the field of regulating mobile home park landlord-
tenant relationships, it did not wholly preempted local action in this field. The legislature expressly conferred concurrent jurisdiction to local municipalities in the field of regulating landlord-tenant compliance with ordinances; the state act did not preempt the local ordinance. The court also found that the ordinance's operation did not conflict with the state law; each could operate distinctly without inconsistency. The ordinance was not unconstitutional.
Lallas v. Skagit County, 144 Wn. App. 114 (4/21/2008), [Torts: quasi-judicial immunity] A deputy sheriff, removing a prisoner from the courtroom upon a judge's request, chose not to handcuff the prisoner. The prisoner bolted, ran, and collided with a court security officer, injuring the officer. The officer sued the county, arguing that the deputy sheriff was negligent by not handcuffing the prisoner. Was the deputy immune from liability because of quasi-judicial immunity? The court concluded that the deputy was not. Quasi-judicial immunity does not shield the deputy or her employer where the challenge was to the manner in which the order was carried out rather than the substance of the judge's order itself, which would have been immune.
Storedahl & Sons v. Clark County, 143 Wn. App. 920 (4/8/2008) [Land use] A hearing examiner approved of a rezone, and set out detailed findings of fact along with information on how the rezone criteria had been met. On appeal to the board of county commissioners, the rezone was overturned, although the board did not change the facts set out by the hearing examiner. On appeal, the court overturned the commissioners' decision. The Board failed to provide a statement listing the facts it found showing the appealed decision did not comply with applicable approval criteria. The court found that the hearing examiner's findings were binding, because the Board did not disagree with them. Because the Board did not disagree with any fact found by the examiner in determining that the rezone was consistent with the comprehensive plan and policies, the examiner's facts became verities and Storedahl was entitled to the requested rezone.
Kitsap County v. Smith, 143 Wn. App. 893 (4/8/2008) [Privacy] A county employee recorded numerous conversations with employees and citizens without the other parties' consent or knowledge and removed documents from his county office. The County filed a complaint for declaratory relief, injunctive relief, and damages, arguing that the employee "willfully and unlawfully recorded private and confidential conversations of County employees" without their knowledge or consent in violation of the Privacy Act, chapter 9.73 RCW, and that the employee had "willfully and unlawfully removed public records within the meaning of RCW 40.14.010 and RCW 42.56.010(2) from Kitsap County's custody and control." The trial court denied the declaratory judgment request, as well as the request for injunctive relief and damages for the asserted unlawful removal and retention of county public records. The court, on appeal, reversed and held that the Privacy Act issue involves a matter of major public importance and that there were issues of material fact related to the removal and retention of county records. The Court remanded the case to the trial court for the determination of whether a conversation with a public employee is a "private" or public conversation under the Privacy Act, 9.72 RCW and to determine who owns a public employee's own copies of work-related documents.
York v. Wahkiakum School District, 163 Wn. 2d 297 (3/13/2008) [Random drug test of student athletes] Drug and alcohol abuse in schools was identified as a serious problem. To help combat the problem, the school district instituted a random drug test program for its student athletes. Athletes were subject to periodic, random urine tests. If tests proved positive, the student could be removed from student athletics, but the test results would not be reported to the police or be included in the student's record. A challenge was brought, arguing that such testing was prohibited under the state constitution (federal cases have upheld such testing under the federal constitution). The Supreme Court held that such testing was not performed under authority of law, that there was no "special needs" exception that would allow such testing without a warrant, and that the program violated article I section 7 of the state constitution.
Storedahl Properties v. Clark County, 143 Wn. App. 489 (3/11/2008) [Stormwater regulation: tax or fee] Under the federal Clean Water Act, due to the its population, the county was required to obtain a National Pollutant Discharge Elimination System (NPDES) permit to deal with stormwater pollution. The county adopted a series of regulations to deal with stormwater and imposed fees to help pay for the costs of implementation. The plaintiff, Storedahl, challenged the fees, arguing that they were in fact taxes. Both the superior and appellate court disagreed. The fees satisfied the three-part test adopted by the court in Covell v. City of Seattle, 127 Wn.2d 874 (1995). The charge was found to be regulatory, a fact specifically noted in the language of the legislation. The proceeds of the fee are put in a special fund and used exclusively for various elements of the regulation. There was a relationship between the fee charged and the property owner's contribution to the stormwater problem.
Ventenbergs v. City of Seattle, 163 Wn. 2d 92 (2/21/2008) [Solid waste disposal] May a city contract exclusively with two solid waste disposal firms, to the exclusion of other firms? Yes. The police power given cities by the constitution allows them to provide for and regulate solid waste disposal. Seattle's contracts for solid waste disposal with Robanco and Waste Management did not constitutional privileges and immunities provisions granted by the constitution because solid waste handling is governmental in nature, and the city's actions did not deny a fundamental right given to citizens. The regulations were reasonable. Bidding was not required under RCW 35.21.156.
Washington Beef v. County of Yakima, 143 Wn. App. 165 (2/14/2008) [Valuation of property for tax purposes] This case reviews the valuation of a beef slaughter, fabrication and storage facility for tax purposes. The court reviews the various ways that property can be valued, e.g., capitalization of income and market value, and concludes that the setting the value of assets for the purpose of assessing property taxes is more of an art than a science, and gave great deference to the conclusions reached by the county assessor. An excellent discussion of valuation methods.
Champagne v. Thurston County, 163 Wn. 2d 69 (2/14/2008) [Personnel - Wage Administration] Thurston County pays its employees for nonregular wages (e.g., overtime wages) at the close of the month subsequent to when the nonregular wages were earned. Champagne sued, arguing that the process violated the Washington Minimum Wage Act (WMA), chapter 49.46 RCW, wage payment act (WPA), chapter 49.48 RCW , and wage rebate act (WRA), chapter 49.52 RCW. The court concluded that the WRA was not violated because the the County did not act willfully; there was a bona fide dispute over payment of wages. There was no cause of action under the the MWA because the county had actually paid all wages due the
employees. There was no action under the WPA since that act only provides for relief where an employer has made improper deductions at the time of termination
Fitzpatrick v. Okanogan County, 143 Wn. App. 288 (1/22/2008) [Inverse Condemnation) The plaintiffs suffered property damage following a flood; they alleged that the damage was result of the construction of a dike. The trial court dismissed the lawsuit and the plaintiffs appealed. In a split decision, the appeals court reversed and returned the case for trial. The common enemy rule, which allows landowners to repel surface waters to the detriment of their neighbors, does not apply when the landowner obstructs a watercourse or natural drainway or when the landowner obstructs riparian water from entering a flood channel. RCW 86.12.020, which authorizes counties to construct and maintain dikes and levees to protect against floods, does not provide immunity since the complaint alleges inverse condemnation.
Resident Action Council v. Seattle Housing Authority, 162 Wn. 2d (1/3/2008) [Constitutional law: Speech] The Housing Authority adopted a rule prohibiting the placement of signs on the outside of the doors to residential housing units. A lawsuit was filed and the superior court held the rule unconstitutional as a violation of both the state and federal constitutions. On appeal a divided Supreme Court affirmed. The Court concluded that the Housing Authority had failed to meet its burden of justifying a restriction on speech. The Housing authority had argued that its rule was designed to avoid the cost of refinishing doors damaged by residents' signs. The Court noted that the Housing Authority could impose restrictions that would prevent damage to its doors by requiring the use of non-damaging materials. A total ban on signs was unnecessary to support the claimed interest. Aesthetics could not justify the ban either, as other restrictions were possible instead of a total ban. The ban violated the First Amendment protection of speech.