Woods View Ii, Llc, Apps./cross-res. v. Kitsap County, Res./cross-appellants ( 2015 )

HHLEO
COURT OF APPEALS
DIVISION
2015 APR 114
STATE
B
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
WOODS VIEW II, LLC, a Washington limited No. 44404 -6 -II
liability company; and DARLENE A. PIPER,
a single woman,
Appellant and Cross -Respondent,
v.
KITSAP COUNTY, a Washington UNPUBLISHED OPINION
municipality,
Respondent and Cross -Appellant.
JOHANSON, C. J. — Appellants Woods View II, LLC ( WVII) and Darlene Piper appeal
from the superior court' s grant of summary judgment in Kitsap County' s ( the County) favor on
WVII' s claims of negligence, tortious interference, and takings. These claims arise from the
alleged delay of several permits and governmental decisions required for a project of WVII. WVII
and Piper argue that ( 1) their claims are not barred by the statute of limitations, ( 2) Piper has
individual standing, (3) the County' s communications were not immunized as petitioning activity,
4) the County negligently delayed processing their development permit, ( 5) the County tortiously
interfered with the various permitting processes involved in the project, and ( 6) the County' s
actions constituted a taking. On cross appeal, the County argues that ( 7) the Land Use Petition
Act ( LUPA), ch. 36. 70C RCW, barred WVII' s claims. Although we agree with WVII that its
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claims are not barred by the statute of limitations, the trial court' s summary dismissal of WVII' s
claims is affirmed.
FACTS
This case involves a failed residential development, four decisions concerning the real
property, and the timeliness of these decisions. Because this case is factually complex with a
voluminous record, we begin by 'establishing the basic factual background and explaining the
applicable administrative framework. Then, we discuss the facts that give rise to WVII' s claims.
Finally, we discuss the procedural history.
I. BACKGROUND: THE WOODS VIEW PROJECT
The appellants are WVII and its managing member, sole owner, and agent Piper. WVII
intended to build a residential development called " Woods View" on 19. 76 acres in small " legacy
lots "1 in south Kitsap County. Piper was personally invested in the project: she was the sole owner
of the construction company that would have served as the general contractor, she personally
funded $ 350, 000 in development expenses, and she personally guaranteed a $ 2, 927, 000 loan to
WVII.
The Woods View project was highly controversial in the community. The county
commissioners received many complaints about the development. Concerned citizens wrote to the
County to complain about the project. One constituent characterized the development as a " mobile
home park." Clerk' s Papers ( CP) at 445. The Woods View project was subjected to scrutiny by
1 Each lot measures approximately 40 feet wide and 100 feet deep, that is, 1 / 10th of an acre. They
are called " legacy lots"
because they were platted in 1909 and are not compliant with current
regulations development to a density of one unit per five acres. An owner is
which restrict
permitted to develop legacy lots, subject to certain restrictions.
2
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not only the county commissioners, but also the governor' s office, state legislators, and state
agencies.
The County was sensitive to these concerns because it had faced frequent criticism for its
land use decisions in the past. CP at 1265 ( County commissioner noted in his deposition, "[ T] he
County gets picked on more than any other county in terms of any of the land use actions that it
takes. "). In fact, it had very recently been challenged before the Growth Management Hearings
Board for failing to regulate " urban service" in rural areas. 2 See Harless v. Kitsap County, No. 07-
3 -0032, 2007 WL 4181033 ( Cent. Puget Sound Growth Mgmt. Hr' gs Bd. Nov. 15, 2007).
In an e- mail to a constituent who was upset about Woods View, County Commissioner
Steve Bauer indicated that " the County staff and elected officials believe that they have actively
worked to find ways within the law to deny this project. . I don' t think anyone can look at this
project and conclude that it is either good for the area or consistent with current land use
standards." CP at 436 ( emphasis added).
II. BACKGROUND AND HISTORY
At issue are four decisions regarding ( 1) a " Site Development Activity Permit" ( SDAP),
2) a State Environmental Policy Act ( SEPA), ch. 43. 21C RCW, review, ( 3) state approval of a
Large On -Site Sewer System" ( LOSS), and ( 4) a modification to the LOSS decision. All four
decisions were made in WVII' s favor and WVII does not challenge the decisions themselves.
Rather, WVII alleges that the permits or decisions were granted too slowly as a direct and indirect
result of the County' s actions. We briefly explain the pertinent history below.
2 The challenge was not successful. Harless v. Kitsap County, No. 07 -3 - 0032, 2007 WL 4181033,
at * 5 ( Cent. Puget Sound Growth Mgmt. Hr' gs Bd. Nov. 15, 2007).
3
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A. SITE DEVELOPMENT ACTIVITY PERMIT ( SDAP) AND
STATE ENVIRONMENTAL POLICY ACT ( SEPA): 2006 -2007
The Woods View project required the County Department of Community Development
DCD) to issue a SDAP. Kitsap County Code ( KCC) 12. 10. 030. Similarly, local government is
obliged to carry out a SEPA review and issue a determination of significance ( DS), a determination
of nonsignificance ( DNS), or a mitigated determination of nonsignificance ( MDNS). City ofFed.
Way v. Town & Country Real Estate, LLC, 161 Wn. App. 17, 53, 252 P. 3d 382 ( 2011) ( citing Moss
v. City of Bellingham, 109 Wn. App. 6, 15, 31 P. 3d 703 ( 2001), review denied, 146 Wn.2d 10172002)); WAC 197- 11- 310( 5)( a), ( b), - 340, - 350( 3); RCW 43. 21C. 030. Under the existing County
ordinances, the County was required to provide a final decision within 78 days of the date it
3
deemed the application complete. Former KCC 21. 04. 110( A) (1998). 4
WVII completed its SEPA " application" on April 14, 2006, and its SDAP application on
5
May 5, 2006. The County issued a MDNS on January 4, 2007. The SDAP was issued on
December 10, 2007. Community groups appealed both decisions to the hearing examiner and the
6
Kitsap County Superior Court, but their appeals were rejected. According to WVII, the hearing
3 As we further discuss in the statute of limitations section, the time limit is tolled when the County
requires the applicant to " correct plans, perform studies, or provide additional information."
Former KCC 21. 04. 110( A)(4)( a) ( 1998).
4 This ordinance was repealed by Kitsap County Ordinance No. 490 ( 2012).
5 This would make the County' s action on the SEPA application due 78 days from April 14, and
action on the SDAP application due 78 days from
May 5— excepting periods during which the
applicant was required to submit additional information. However, WVII complains only that the
SDAP was issued late.
6 WVII relied on the County' s delay in its argument against these appeals, stating that " the County
was doing a good and careful job." CP at 1360.
4
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examiner was also tardy, hearing argument on March 20, 2008, and filing a decision on June 6,
2008. 7
B. ORIGINAL LOSS PROPOSAL: 2006 -2008
A LOSS is a type of waste treatment system that serves multiple lots. Unlike the SDAP
and SEPA review, the LOSS was not absolutely necessary for the project to move forward, but it
would have allowed Woods View to double its density. With the LOSS, Woods View could
support 78 single - family homes. Without the LOSS, Woods View could support only 39 homes
using individual septic systems.
The state Department of Health ( DOH) is responsible for evaluating LOSS applications.
WAC 246 -272B- 02150. The County has no direct authority to approve or disapprove a LOSS
system. Nevertheless, the then -existing administrative code required a LOSS to comply with local
8
land use standards. See former WAC 246 -272B- 08001( 2)( a)( ii) (2003). Accordingly, while the
DOH always had primary responsibility for passing on a LOSS application, it communicated with
the County regarding WVII' s application for a LOSS permit, as we explain further below.
At the relevant time, the DOH rules imposed requirements on the LOSS system' s
management depending on how the land serviced by the LOSS would be used. Where the lots
were individually owned, a LOSS could only be managed by a public entity or a private operator
guaranteed by a public entity. Former WAC 246 -272B- 08001( 2)( a)( vi)(A)(I) (2003). But if the
7 WVII asserts that a former county ordinance, in effect during the relevant time period, required
hearing examiners to make a decision within 14 days of hearing argument. The current version
imposes no such deadline. KCC 21. 04. 080.
8 This section of the Washington Administrative Code has since been repealed by Wash. St. Reg.
11 - 12 -050 ( Jul. 1, 2011).
No. 44404 -6 -II
lots were under single ownership, either a public entity or a private entity could manage the LOSS.
Former WAC 246- 272B- 08001( 2)( a)( vi)( A)(II) (2003). One such public entity was the Karcher
Creek Sewer District (KCSD). WVII initially approached KCSD to manage the LOSS for Woods
View, and on September 29, 2006, KCSD issued a " Binding Sewer Availability" letter good for
one year. But on December 1, 2006, WVII indicated that it had decided to use a " DOH approved
private management entity" instead. CP at 135.
WVII requested a LOSS permit at some time in 2006. DOH granted the LOSS permit on
March 19, 2008, conditioned on the Woods View lots being held by a single owner. At first, WVII
agreed to the condition and recorded a " Covenant to Retain Single Ownership" on the same day.
But WVII soon found the single -owner condition a barrier to financing: it approached the Legacy
Group ( Legacy) for a business loan, but Legacy " liked the project as depicted with an individual
owner model" and found DOH' s conditions made the project a " non- starter." CP at 125. As such,
WVII decided to petition DOH for a modification to its LOSS permit that would allow the lots to
9
be sold individually.
C. MODIFIED LOSS PROPOSAL ( 2009 -2010)
WVII submitted all necessary documents for its modified LOSS proposal in November
2009. Richard Benson, the DOH engineer who initially worked on the Woods View permit,
indicated that DOH could make the change " in a matter of a week to two weeks except that if the
county had objections to it, he said, quote -unquote, `` I' m going to have to dot my i' s and cross my
9
Specifically, the new LOSS proposal involved management by a private entity guaranteed by a
public entity. This would bring the LOSS under former WAC 246 -272B- 08001( 2)( a)( vi)(A)(I)
and allow individual ownership of the lots.
6
No. 44404 -6 -I1
is and we' ll have to go through the full process and it could take up to six months to a year.'" CP
at 1846. The modified LOSS was not approved until August 24, 2010.
III. ALLEGED WRONGFUL ACTIONS BY THE COUNTY
WVII alleges that the County caused the aforementioned delays as part of a deliberate plan
to undermine the Woods View project. While WVII points to many instances of the County' s
alleged intermeddling, its facts can be reduced to three main courses of conduct: communications
with DOH, communications with third parties, and internal delays. We explore these courses of
conduct in turn.
A. COMMUNICATIONS WITH DOH
In an internal County e -mail, a deputy prosecutor proposed " a ``loop' with the state to ensure
that the county is not allowing urban development in a rural area." CP at 433. Specifically, the
County' s attorney told her colleagues that
even though [ the Woods View project] is " vested" it is not conforming to our
current plan. Thus, if the state were to inquire of DCD whether this meets our plan
DCD could say no, and the state would have to deny it.
CP at 433.
As described above, the state did not deny the LOSS permit. Still, the record indicates that
the " issue of compliance with current land use standards" was a " significant issue that [ DOH was
grappling with" and was a " relatively important issue in the final approval." CP at 1631. During
the pendency of both of WVII' s LOSS applications, the County remained in contact with DOH.
On November 14, 2007, the deputy prosecutor e- mailed DOH a Growth Management Hearings
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Board decision, which Benson understood to mean " they all want me to enforce [ the County' s land
use standards] directly. "10 CP at 663.
In a letter dated December 3, 2007, the director of the county DCD referenced the same
Growth Management Hearings Board decision, which explained that land -use densities as
determined by the County in its GMA Land Use Plan and zoning are the controlling factor in any
review for septic systems, even if review is conducted by the state. He told DOH that WVII did
not meet current designations, but was a legal nonconforming use because the proposed LOSS was
to serve lots that, while legally created prior to the enactment of the GMA, did not meet current
county comprehensive plan or zoning designations for the area. DCD closed the letter by stating
that it was merely informing DOH as to the Growth Management Hearings Board' s decision, but
that it was not advocating any specific action, leaving that to the state' s discretion.
Then, when DOH was " near approval after a lengthy review process" ( CP at 343), county
representatives met with DOH on March 12, 2008. The County told DOH that the Woods View
project should not be approved
because the over -all development is not consistent with the County' s and GMA' s
land use designations. They assert this violates the State' s duty to ensure projects
are consistent with local planning.
However, the County sees that it has no authority to deny the project.
CP at 340. The County did request that DOH condition the LOSS permit on single ownership of
the Woods View lots.
10 As Benson later clarified at deposition, he understood the e -mail to mean that he should not
approve the LOSS because it did not conform with the County' s land use requirements.
8
No. 44404 -6 -II
As described above, DOH issued WVII' s LOSS permit with the requested single -
ownership condition a week after the meeting.
When WVII made its modified LOSS proposal, the County' s attorney sent the Attorney
General' s Office a series of e -mails between September 3 and September 10, 2009, expressing
concern about the amendments. The County' s attorney believed that WVII' s requested permitting
change was an ' after the fact' change, outside the public process, and is [ sic] essentially is
circumventing the law. We feel it cannot be approved and are hereby lodging our objections." CP
at351.
On September 3, 2009, Benson e- mailed the county DCD to check if WVII would be " a
violation of county code" and confirm whether DCD would oppose the development. CP at 417.
DCD e- mailed back on September 15 to state that " urban levels of service are being provided
outside an urban growth area, which is inconsistent with the County' s comprehensive plan and the
Growth Management Act." CP at 417. That same month, DOH required WVII to submit renewed
proof that it was in compliance with local land use standards. In March 2010, DOH transferred
WVII' s LOSS application from Benson to a different examiner who was not aware ofthe County' s
objections. It was this second examiner who ultimately approved the revised LOSS five months
later.
B. COMMUNICATIONS WITH THIRD PARTIES
In September of 2007, KCSD did not renew its agreement to manage the Woods View
LOSS. WVII alleges that this nonrenewal occurred because the County intimidated KCSD.
Specifically, on June 7, 2007, county representatives met with KCSD and opined that KCSD was
9
No. 44404 -6 -II
not permitted to own or operate a LOSS in a rural area. The County was concerned about being
sued by neighboring property owners. KCSD disagreed with the County' s legal position.
The County indicated that " if the District decided to own and /or operate the LOSS, Kitsap
County could not tell KCSD not to." CP at 835. But the County then declared a moratorium to
preclude the use of a LOSS in rural areas, thereby preventing entities like KCSD from participating
in projects like Woods View. KCSD determined that it "did not wish to own or operate the LOSS
for Woods View if Kitsap County had an ordinance prohibiting it." CP at 835. KCSD' s
withdrawal left WVII without a public operator for its LOSS.
Furthermore, WVII argues that it would have received development loan financing from
Legacy but for the County' s actions. Legacy had committed to a loan but had second thoughts
when, as part of its due diligence, Legacy had a conference call with county officials. The County
told Legacy that " the ownership change was a `` big change of use' and that it could necessitate
hearings and delay timelines." CP at 124. But the County did not know what DOH was going to
do. On the other hand, Legacy also indicated that
t]he County did not give us assurances of how the DCD process would play out
we did not feel as though the County actors tried to discourage our consideration
of loaning to Woods View II LLC and did not perceive the County as trying to
inject itself into our business relationship with Woods View II LLC or Ms. Piper.
CP at 124 -25. Following the call with the County, Legacy declined to fund the loan.
C. COUNTY' S INTERNAL DELAY
WVII alleges that the County was purposely slow to issue its SDAP permit, but points to
only one specific act
by the County. On October 13, 2006, Kitsap County Administrator Cris
Gears sent the state Department of Commerce, Trade, and Economic Development (CTED) a letter
expressing concern whether the WVII LOSS would be a "' public sewer system ' pursuant to WAC
10
No. 44404 -6 -II
242 -272 -01001 [ sic], and whether it would allow " the development of urban densities outside an
urban growth area in violation of RCW 36. 70A. 110( 4) and RCW 57. 16. 010( 6)." CP at 322.
Pending a response to that letter, the County allegedly suspended the processing of WVII' s SDAP
application. CTED responded to Gears' s letter on November 3, 2006. 11
IV. PROCEDURAL HISTORY
But for the aforementioned delays, WVII asserts that the Woods View lots could have been
available for sale as early as May 2008. As it is, by 2009, the real estate market had become
unfavorable. The Woods View business loan went into default. On December 31, 2009, the
Woods View property went into foreclosure. Piper herself went bankrupt in May 2010 and was
discharged. WVII estimates that the delays cost WVII somewhere between $ 2. 55 million and
4. 37 million and personally cost Piper somewhere between $ 1. 39 million and $ 1. 56 million.
On October 14, 2009, WVII Piper On
claim12
and served a notice of on the County.
December 18, 2009, WVII and Piper filed a lawsuit in superior court asserting federal due process
and takings claims as well as state law torts. The County removed the suit to the U.S. District
Court for the Western District of Washington in Tacoma. There, the judge dismissed the federal
constitutional claims with prejudice and dismissed the state claims without prejudice. A year later,
the Ninth Circuit Court of Appeals affirmed this decision on different grounds. The Ninth Circuit
disagreed with the ripeness analysis, but agreed with the each subsequent ruling. Specifically, the
11 CTED told Gears that " if the proposed on -site system serves urban levels of development, we
believe it is consequently an urban level of service ... which is contrary to the purpose of the Rural
Residential zone." CP at 610.
12 Former RCW 4. 96.020 ( 2009).
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Ninth Circuit held that WVII' s substantive due process claims failed because " it is at least fairly
debatable that Appellees' delays in issuing the SDAP and SEPA approvals were rationally related
to a legitimate governmental interest in ensuring that local development complied with state law."
CP at 1476.
On July 18, 2011, WVII refiled its complaint in state court alleging negligence, tortious
interference, and unconstitutional takings and requesting a declaratory judgment and injunctive
relief.13 The County filed a motion for summary judgment to dismiss all of WVII' s claims, which
the superior court denied.
In a second motion for summary judgment, the County requested dismissal of WVII' s
tortious interference and negligence claims. In a supplemental brief to the superior court, the
County also requested dismissal of the takings claim. On December 12, 2012, the superior court
dismissed all of WVII' s claims. This appeal followed. The County raised a LUPA issue on cross
appeal.
ANALYSIS
This case involves multiple theories of liability that apply to many of the same facts. We
discuss procedural issues first. Then, we discuss the three substantive issues —negligence, tortious
interference, and takings.
I. STANDARD OF REVIEW
A grant of summary judgment is reviewed de novo. Mohr v. Grantham, 172 Wn.2d 844,
859, 262 P. 3d 490 ( 2011). We will affirm the summary judgment only if there is no genuine issue
13 The parties have stipulated to dismiss the claims for declaratory judgment and injunctive relief
as well as the County' s counterclaim for malicious prosecution.
12
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of material fact and the moving party is entitled to judgment as a matter of law. Qwest Corp v.
City of Bellevue, 161 Wn. 2d 353, 358, 166 P. 3d 667 ( 2007). However, the party opposing
summary judgment " may not rest upon the mere allegations or denials of his pleading, but .. .
must set forth specific facts showing that there is a genuine issue for trial." CR 56( e).
On review of a summary judgment, the evidence is reviewed in the light most favorable to
the nonmoving party, and all reasonable inferences from that evidence are drawn in favor of the
nonmoving party. Qwest, 161 Wn.2d at 358. If reasonable minds can differ on facts controlling
the outcome of the litigation, then there is a genuine issue of material fact and summary judgment
is improper. Ranger Ins. Co.. v. Pierce County, 164 Wn. 2d 545, 552, 192 P. 3d 886 ( 2008).
Summary judgment is also improper if the issue at bar requires the weighing of " competing,
apparently competent evidence," in which case this court will reverse and remand for a trial to
resolve the factual issues. Larson v. Nelson, 118 Wn. App. 797, 810, 77 P. 3d 671 ( 2003).
II. STATUTE OF LIMITATIONS
The County argues that WVII' s claims for negligence and tortious interference are barred
by the three -year statute of limitations. The County argues that it was required to issue a decision
on the SDAP application and SEPA threshold decision by July 22, 2006, and that its failure to do
so started the statute of limitations running, meaning that the statute of limitations expired on July
22, 2009. WVII argues that its tortious interference claim did not accrue until late October 2006
when it first became aware of the facts that would support a tortious interference claim. WVII
further argues that its negligence and tortious interference claims arising out of the County' s delay
did not accrue until December 2006 as the County' s requests for further information extended the
statutory deadline for the County to process its application and, thus, the time when the County
13
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was in violation of the ordinance. 14 We agree with WVII and hold that WVII' s claims are not
barred by the statute of limitations.' 5
The statute of limitations for negligence and tortious interference is three years. RCW
4. 16. 080( 2). The statute of limitations begins to run when the plaintiff has a right to seek recovery
in the courts. Malnar v. Carlson, 128 Wn.2d 521, 529, 910 P. 2d 455 ( 1996). That is, the statute
of limitations does not begin to run until every element of an action is susceptible of proof,
including the occurrence of actual loss or damage. Haslund v. City ofSeattle, 86 Wn.2d 607, 619,
547 P. 2d 1221 ( 1976); Mayer v. City of Seattle, 102 Wn. App. 66, 76, 10 P. 3d 408 ( 2000), review
denied, 142 Wn.2d 1029 ( 2001).
WVII bases its claims, in part, on the County' s delay in issuing the SDAP and in affirming
the SDAP issuance on appea1. 16 As WVII points out, the County exceeded time limits imposed
by its own ordinances. See former KCC 21. 04. 110( A)(4)( a) ( 1998). As Division One of this court
has recognized, where a claim arises out of a permitting body' s failure to comply with statutory
time limits, the cause of action does not accrue until the time limit is actually exceeded. Birnbaum
v. Pierce County, 167 Wn. App. 728, 734, 274 P.3d 1070, review denied, 175 Wn.2d 1018 ( 2012).
14 WVII argues, and the County does not dispute, that the 10 -year statute of limitations for its
taking claim has not run.
15
Accordingly, we do not reach WVII' s alternative theory that the continuing tort doctrine
prevented the statute of limitations from running until the County' s allegedly tortious conduct
ended.
16 The County does not appear to dispute that the hearing examiner' s failure to timely make a
decision on the SDAP appeal fell within the statute of limitations.
14
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Here, WVII completed its SDAP application on May 5, 2006. Former KCC 21. 04. 110( A)
required a decision within 78 days of the application becoming complete. As the County points
out, that would make its SDAP decision due on July 22, 2006 —more than three years before WVII
submitted its claims to the County. But that is not the whole story because former KCC
21. 04. 110( A)(4)( a) also excludes
a] ny period during which the applicant has been required by the county to correct
plans, perform studies, or provide additional information. The period shall be
calculated from the date the county notifies the applicant of the need for additional
information to the earlier of either: ( 1) the date the county determines whether the
additional information provided satisfies the request for information; or (2) fourteen
days after the date the information has been provided to the county.
Here, the County made two such requests for additional information. First, on or prior to July 13,
2006, the County requested information about " two possible `` depressions' on the property which
may have been protected streams." CP at 1955. WVII provided the requested information on July
19, 2006. The County did not respond, so the time limit would have begun to run 14 days after
July 19, 2006 - that is, August 2, 2006.
But on July 31, 2006, the County again requested additional information. WVII provided
the requested information on November 20, 2006. Again, the County did not respond, meaning
that the time limit did not start running again until 14 days after November 20, 2006 —that is,
December 4, 2006.
Accordingly, the 78 -day time limit on the County' s permitting decisions began to run on
or about May 5 and excluded the period between July 13, 2006 and August 2, 2006, as well as the
period between July 31, 2006 and December 4, 2006. This calculation means that approximately
10 of the 78 days remained. Therefore, any claim for delay of the SDAP permit did not accrue
15
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until December 13, 2006, the earliest date the County was in violation of its own time limit
ordinance. That is less than three years before WVII presented its tort claims on October 14, 2009.
The County' s only response to this argument is that it was not raised until the second
17
supplemental brief in the superior court and contradicted WVII' s earlier pleadings. But "[ w]here
evidence raising issues beyond the scope of the pleadings is admitted without objection, the
pleadings will be deemed amended to conform to the proof." Jensen v. Ledgett, 15 Wn. App. 552,
555, 550 P. 2d 1175 ( 1976) ( citing Robertson v. Bindel, 67 Wn.2d 172, 406 P. 2d 779 ( 1965)). The
County did not object to WVII' s tolling argument and, thus, waived the issue.
WVII' s negligence claim arising out of the delay on its SDAP application was not time
barred. Because WVII' s tortious interference claim arises in part from the delay, it also complies
with the statute of limitations. We conclude that WVII' s negligence and tortious interference
claims are not barred by the statute of limitations.
III. STANDING
The County argues that Piper has no standing to litigate any harm WVII suffered because
she was a mere shareholder and guarantor of the WVII LLC. We agree and, therefore, affirm the
superior court' s dismissal of Piper' s claims.
Generally, a party can only litigate a claim if she has a "`` present, substantial interest ' in
its outcome and can show that she will be "`` benefited by the relief granted. "' State ex rel. Hays v.
17 The County also argues that the contention that the delay claim accrued in December is
inconsistent with the claim that it was wrongful to suspend processing of the SDAP starting in
October 2006. Perhaps, but this does not make WVII' s statute of limitations analysis any less
correct. Furthermore, as WVII argues, the County could have continued processing other portions
of the SDAP application even while waiting on a response to Gears' s letter.
16
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Wilson, 17 Wn.2d 670, 672, 137 P. 2d 105 ( 1943) ( quoting 39 AM. JUR. Parties § 10, at 860 ( 1942)).
But shareholders and guarantors attempting to assert standing in the name of a corporation or
principal face a higher hurdle.
Shareholders are usually not allowed to bring an individual direct cause of action for an
injury inflicted upon the corporation or its property by a third party. United States v. Stonehill, 83
F. 3d 1156, 1160 ( 9th Cir.) ( citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 548, 69
S. Ct. 1221, 93 L. Ed. 1528 ( 1949); Sutter v. Gen. Petroleum Corp., 28 Cal. 2d 525, 530, 170 P. 2d
898 ( 1946); Jones v. H.F. Ahmanson & Co., 1 Cal. 3d 93, 81 Cal. Rptr. 592, 597 -99, 460 P. 2d 4641969)), cert. denied, 519 U. S. 992 ( 1996). The exception to this rule occurs where the
shareholder' s claim arises from " something other than his shareholder status." Sound Infiniti, Inc.
v. Snyder, 145 Wn. App. 333, 352, 186 P. 3d 1107 ( 2008) ( emphasis omitted),
aff'd, 169 Wn.2d
199, 237 P. 3d 241 ( 2010). Thus, Division One of this court recognizes two exceptions to the usual
rule against shareholder standing: "( 1) where there is a special duty, such as a contractual duty,
between the wrongdoer and the shareholder; and ( 2) where the shareholder suffered an injury
separate and distinct from that suffered by other shareholders." Sabey v. Howard Johnson & Co.,
101 Wn. App. 575, 584 -85, 5 P. 3d 730 ( 2000). Similarly, Division One has held that " a guarantor
must show a distinct and different injury before an independent action can be maintained." Miller
v. U.S. Bank of Wash., N.A., 72 Wn. App. 416, 423, 865 P. 2d 536 ( 1994) ( citing Sparling v.
Hoffman Constr. Co., 864 F.2d 635, 640 ( 9th Cir. 1988)).
The causes of action in this case arose out of WVII' s relationships with regulatory agencies
and potential business partners. Piper herself was not a party to any of these relationships, and the
fact that she negotiated or executed contracts on behalf of WVII does not make her a party. Hunter
17
No. 44404 -6 -II
v. Knight, Vale & Gregory, 18 Wn. App. 640, 644 -45, 571 P. 2d 212 ( 1977), review denied, 89
Wn.2d 1021 ( 1978). Rather, WVII acquired the property and applied for the permits. CP at 1392
Q. And for all the important things that happened in this development, it was Woods View II
that was the owner; correct? A. Yes. ").
WVII argues that Piper suffered a separate and distinct injury because the failure of the
Woods View project resulted in a nonjudicial foreclosure that extinguished WVII' s liability but
preserved the right to pursue a deficiency judgment against Piper as guarantor. WVII further points
to debts that Piper personally guaranteed in Norpac Construction, LLC' s favor, which also went
into default because the Woods View project failed. Finally, WVII points to various creditors who
filed suit against Norpac and Piper, but not WVII.
But these facts are properly analyzed as consequential damages that would not have
happened but for the primary harm to WVII. A shareholder does not have standing to recover
consequential damages that result from the harm to her corporation. Stonehill, 83 F. 3d at 1160.
The fact that Piper was the sole shareholder of WVII does not change our analysis: a sole
shareholder,
by necessity, cannot show " an injury distinct from that to other shareholders."
Sparling, 864 F. 2d at 641.
Piper has not established an exception to the shareholder standing rule. Therefore, she
18
lacks standing.
18
Accordingly, we do not reach the issue of whether Piper was collaterally estopped from litigating
the issue of standing.
18
No. 44404 -6 -II
IV. LUPA
On cross appeal, the County argues that its permitting actions can be challenged only
through a LUPA appeal and that WVII' s failure to bring an action under LUPA bars any damages
actions arising from its permitting activity. 19 WVII argues that LUPA does not bar its action
because it is seeking monetary compensation rather than a modification of a land use decision, and
its action is not a superior court review of an administrative decision. We agree with WVII. LUPA
does not bar this action.
LUPA is normally the exclusive remedy for land use decisions. RCW 36. 70C. 030( 1). But
LUPA does not apply to "[ c] laims provided by any law for monetary damages or compensation."
RCW 36. 70C. 030( 1)( c). This is not a strict bar —as this court has recognized, a damage claim
may still be controlled by LUPA if it is dependent on " an interpretive decision regarding the
application of a zoning ordinance." Asche v. Bloomquist, 132 Wn. App. 784, 801, 133 P. 3d 4752006), review denied, 159 Wn.2d 1005 ( 2007). Further, even if an applicant obtains the requested
permit approval, he still must file a LUPA appeal if he intends to challenge the propriety of any
conditions placed on issuance of the permit. James v Kitsap County, 154 Wn.2d 574, 590, 115
P. 3d 286 ( 2005).
This case is not like Asche nor James, however. WVII is not challenging the actual land
use decisions below because it received all of the permits it asked for nor is it challenging any
conditions imposed. Instead, this case is analogous to Lakey v. Puget Sound Energy, Inc., 176
19 The County' s brief indicates that it' s cross notice of appeal is intended only to preserve
arguments from its first summary judgment motion and that the County seeks no relief other than
the affirmance of the summary judgment below.
19
No. 44404 -641
Wn.2d 909, 296 P. 3d 860 ( 2013). There, the Supreme Court ruled that the appellants were not
required to file a LUPA petition to pursue their claims for damages where the appellants were only
seeking money compensation rather than a reversal or modification of a land use decision. Further,
the Supreme Court held that because LUPA provides for judicial review of a local jurisdiction' s
land use decision and the appellants were making a claim that they could not raise before the
hearing examiner, appellants were not invoking the superior court' s appellate jurisdiction and
LUPA did not govern their claim. Lakey, 176 Wn.2d at 927 -28.
Similarly, all WVII seeks is damages for the delay in rendering those decisions. In such a
case, LUPA is not a bar to the plaintiff' s claims. Libera v. City ofPort Angeles, 178 Wn. App.
669, 675 n. 6, 316 P. 3d 1064 ( 2013). LUPA does not bar WVII' s claims here and we reject the
County' s LUPA cross appeal.
V. NEGLIGENCE / PUBLIC DUTY DOCTRINE
WVII argues that the County' s delay in processing its SDAP and issuing the MDNS fell
short of the standard of care for municipalities in the course of their permitting responsibilities.
We agree with the County' s public duty doctrine arguments and affirm the summary judgment as
to WVII' s negligence claim.
Every negligence action requires a showing of "a duty of care running from the defendant
to the plaintiff." Honcoop v. State, 111 Wn.2d 182, 188, 759 P. 2d 1188 ( 1988). Where the
defendant is a government entity,
the public duty doctrine provides that a plaintiff must show the duty breached was
owed to him or her in particular, and was not the breach of an obligation owed to
the public in general, i.e., a duty owed to all is a duty owed to none.
20
No. 44404 -6 -II
Munich v. Skagit Emergency Commc' n Ctr., 175 Wn.2d 871, 878, 288 P. 3d 328 ( 2012) ( citing
Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 785, 30 P. 3d 1261 ( 2001); Beal v.
City ofSeattle, 134 Wn.2d 769, 784, 954 P. 2d 237 ( 1998)).
There are four exceptions to the public duty doctrine: ( 1) legislative intent, (2) failure to
enforce, ( 3) the rescue doctrine, and ( 4) a special relationship. Munich, 175 Wn.2d at 879 ( citing
Cummins v. Lewis County, 156 Wn.2d 844, 853, 133 P. 3d 458 ( 2006)). If any one ofthe exceptions
applies, then the government owes the plaintiff a duty as a matter of law. Munich, 175 Wn.2d at
879. Here, WVII argues only the failure to enforce and special relationship exceptions are at issue,
but we conclude neither exception applies.
A. FAILURE TO ENFORCE
The failure to enforce exception applies when "[( 1)] governmental agents responsible for
enforcing statutory requirements [( 2)] possess actual knowledge of a statutory violation, fail to
take corrective action despite a statutory duty to do so, and [( 3)] the plaintiff is within the class the
statute intended to protect." Bailey v. Town of Forks, 108 Wn.2d 262, 268, 737 P. 2d 1257, 735
P. 2d 523 ( 1987). This exception is narrowly construed, so as to respect the policy of Taylor v.
Stevens County, 111 Wn.2d 159, 165, 759 P. 2d 447 ( 1988). Atherton Condo. Apartment -Owners
Ass 'n Bd. ofDirs. v. Blume Dev. Co., 115 Wn.2d 506, 531, 799 P. 2d 250 ( 1990).
In Taylor, our Supreme Court held that " building codes impose duties that are owed to the
public at large." 111 Wn.2d at 165. That is, " building codes are designed to protect the public
safety, health and welfare, not to protect individuals from economic loss caused by public officials
while carrying on public duties." Taylor, 111 Wn.2d at 169 ( emphasis added). Taylor purposely
drew the scope of the public duty narrowly in order to avoid " dissuad[ ing] public officials from
21
No. 44404 -6 -II
carrying out their public duty." 111 Wn.2d at 171. These same policy principles require this court
to construe the failure to enforce exception narrowly as well.
WVII admits that no reported case has applied the failure to enforce exception in a case
like this. Indeed, WVII raises the unusual theory that the statutory requirement that the County
failed to enforce was its own mandate to issue a timely permit. We found no Washington case that
has applied the failure -to- enforce exception where the defendant government entity fails to take
corrective action against itself Rather, the failure to enforce exception envisions a situation in
which a regulator knowingly approves " inherently dangerous and hazardous conditions," Pepper
v. J.J. Welcome Constr. Co., 73 Wn. App. 523, 533 -34, 871 P.2d 601, abrogated by Phillips v.
King County, 87 Wn. App. 468, 943 P. 2d 306 ( 1997), review denied, 124 Wn.2d 1029 ( 1994), or
where a police officer fails to take an intoxicated driver into custody, Bailey, 108 Wn.2d at 264.
Also missing is any " mandatory duty to take specific action" to correct a violation. Forest
v. State, 62 Wn. App. 363, 369, 814 P. 2d 1181 ( 1991). While former KCC 21. 04. 110( A) does
state that decisions " shall be issued not more than seventy -eight days after the date of the
determination of completeness" ( emphasis added), the ordinance does not tell the County what to
do if it does not, in fact, issue a decision by that time. The reason for this is obvious —it is the
judiciary, not the County, which is responsible for correcting the County 's failure to abide by its
own time limits. That is, any duty to correct the County' s behavior is not vested in the County.
Drawing the failure -to- enforce exception narrowly, as Taylor requires us to do, we hold that WVII
has failed to show that the exception should apply.
22
No. 44404 -6 -II
B. SPECIAL RELATIONSHIP
The special relationship exception applies when "( 1) there is direct contact or privity
between the public official and the injured plaintiff which sets the latter apart from the general
public, and ( 2) there are express assurances given by a public official, which ( 3) gives rise to
justifiable reliance on the part of the plaintiff." Taylor, 111 Wn.2d at 166.
The first element, privity, is defined broadly —it refers to the relationship between a
government agency and any reasonably foreseeable plaintiff. Chambers -Castanes v. King County,
100. Wn.2d 275, 286, 669 P. 2d 451 ( 1983). Drawing all factual inferences in WVII' s favor, we
hold that WVII was a reasonably foreseeable plaintiff.
The second element requires that " a direct inquiry is made by an individual and incorrect
information is clearly set forth by the government, the government intends that it be relied upon
and it is relied upon by the individual to his detriment." Meaney v. Dodd, 111 Wn.2d 174, 180,
759 P. 2d 455 ( 1988). An assurance is express only if it promises that a government official "would
act in a specific manner." Babcock, 144 Wn.2d at 791. Furthermore, any express assurance must
be unequivocal. Meaney, 111 Wn.2d at 180.
The third elementjustifiable reliance — is a " question of fact generally not amenable to
summary judgment." Babcock, 144 Wn.2d at 792.
WVII points to the County' s statement that " it would process the application as a vested
permit request, meaning that [ WVII] should receive the permit under the land use requirements in
place at that time." CP at 602 -03. This may be an assurance that WVII would receive the SDAP
permit, which it did. But it was not an assurance that WVII would receive the permit within a
specific timeframe. Perhaps WVII had a reasonable expectancy that the SDAP permit would issue
23
No. 44404 -6 -II
within the 78 -day time limit established by former KCC 21. 04. 110( A). If so, that expectancy was
an implied assurance not an express one. WVII fails to point out what " incorrect information [was]
clearly set forth" by the County. Meaney, 111 Wn.2d at 180. For that reason WVII' s claim that
the special relationship exception applies fails.
C. CONCLUSION
Because neither of the asserted exceptions to the public duty doctrine (failure to enforce or
special relationship) applies, the public duty doctrine bars negligence liability as a matter of law.
WVII. fails to establish that the County' s duty to timely issue SDAPs was owed to WVII in
particular rather than the public in general. As such, WVII' s negligence claim fails at the outset,
and summary judgment on the negligence claim was proper. As to WVII' s negligence claim, we
affirm the superior court' s summary dismissal.
VI. TORTIOUS INTERFERENCE
WVII argues that the County interfered with its business expectancies and contracts when
it suspended the processing of WVII' s SDAP application, caused KCSD to withdraw from its
contract to manage the LOSS for WVII, communicated with DOH regarding WVII' s pending
LOSS permit, and delayed the approval process for the project. We disagree.
Tortious interference has five elements: ( 1) Business relationship /expectancy, ( 2)
defendant' s knowledge of relationship, ( 3) intentional interference resulting in termination of
relationship, (4) improper purpose /means, and ( 5) damages. Pac. Nw. Shooting Park Ass 'n v. City
of Sequim, 158 Wn.2d 342, 351, 144 P. 3d 276 ( 2006). These elements are described in detail
below.
24
No. 44404 -6 -II
We conclude WVII fails to show that the County' s interference resulted in the termination
of WVII' s relationship with either KCSD or Legacy under prong ( 3). We further conclude that
WVII is unable to show any genuine dispute as to a material fact regarding prong (4), whether the
County acted with improper means or improper purpose regarding its business expectancy in the
project. Accordingly, we decline to reach the issue of damages or proximate cause, and we affirm
the superior court' s order granting summary judgment on this claim.
A. ELEMENTS OF TORTIOUS INTERFERENCE
1. BUSINESS RELATIONSHIP OR EXPECTANCY
A developer has a protected business expectancy in its projects, which can give rise to a
tortious interference claim. Westmark Dev. Corp. v. City of Burien, 140 Wn. App. 540, 557 -58,
166 P. 3d 813 ( 2007), review denied, 163 Wn.2d 1055 .(2008). WVII' s expectancy in its Woods
View project satisfies the first element. Furthermore, WVII had business relationships with its
prospective LOSS manager, KCSD, and its prospective lender, Legacy. Both KCSD and Legacy
made an initial commitment to work with WVII. Drawing all factual inferences in favor of WVII,
the nonmoving party, we hold that the first element of tortious interference is satisfied.
2. KNOWLEDGE OF RELATIONSHIP
The knowledge element is satisfied when the defendant knows of "facts giving rise to the
existence of the relationship." Calbom v. Knudtzon, 65 Wn.2d 157, 165, 396 P. 2d 148 ( 1964).
This element does not require specific knowledge, only awareness of " some kind of business
arrangement." Topline Equip., Inc. v. Stan Witty Land, Inc., 31 Wn. App. 86, 93, 639 P. 2d 825,
review denied, 97 Wn.2d 1015 ( 1982). Here, the County was certainly aware of WVII' s business
plans for the Woods View development. The County was also aware of WVII' s business
25
No. 44404 -6 -II
relationships with KCSD and Legacythat is the reason the County communicated with KCSD
and Legacy. Drawing all factual inferences in WVII' s favor, the second element is satisfied.
3. INTENTIONAL INTERFERENCE RESULTING IN TERMINATION OF RELATIONSHIP
a. KCSD
WVII alleges that the County interfered with WVII' s business relationships with both
KCSD and Legacy, as well as WVII' s business expectancy in the Woods View project in general.
It is true that the County communicated with both KCSD and Legacy, and it is true that both KCSD
and Legacy terminated their business relationships with WVII. The question is whether the
County' s communications caused those business relationships to end. Even drawing all factual
inferences in WVII' s favor, a reasonable finder of fact could not find that the County caused the
termination of WVII' s relationships with KCSD and Legacy.
The County contacted KCSD in June 2007 to voice its concerns over the legality of the
Woods View project. By that time, WVII had already decided of its own volition to abandon its
relationship with KCSD and " move forward with using a DOH approved private management
entity." CP at 135; see also CP at 139 ( "[ M]y client has not concluded a maintenance agreement
with [ KCSD] and at this point does not intend to do so. "). Accordingly, whether or not KCSD
acted on the basis of the County' s legal arguments, it was not KCSD that ended the relationship
with WVII but rather WVII itself. There is no genuine issue of material fact as to whether the
County tortiously interfered with WVII' s relationship with KCSD.
b. LEGACY
WVII' s arguments with respect to Legacy are similarly unavailing. It is true that Legacy
declined to fund WVII' s loan after a conference call with the County. However, according to
26
No. 44404 -6 -II
Legacy' s vice president, Brent Eley, the County did not express any opinion about whether the
Woods View project or the associated permits would be approved and that Legacy " did not feel as
though the County actors tried to discourage our consideration of loaning to Woods View II LLC
and did not ... try[] to inject itself into [ Legacy' s] business relationship with Woods View II LLC
or Ms. Piper." CP at 124 -25. Eley' s testimony unambiguously shows that the County did not
cause Legacy to decline to fund WVII' s loan. WVII fails to present any evidence that would lead
a reasonable finder of fact to disbelieve Eley' s account. Accordingly, we hold that WVII has failed
to show specific facts that would create a genuine issue of fact regarding the County' s alleged
tortious interference with WVII' s relationship with Legacy. CR 56( e).
C. WOODS VIEW BUSINESS EXPECTANCY
WVII argues that the County' s own delay, as well as delay that the County caused DOH to
incur, caused the Woods View project to fail. Even assuming without deciding that WVII
establishes intentional interference resulting in termination of relationship, WVII fails to establish
a genuine dispute as to prong ( 4) improper purpose /means. Accordingly, we need not analyze
further whether the County' s interference resulted in termination of the project.
4. IMPROPER PURPOSE OR MEANS
The fourth element may be satisfied by proving either that the defendant had an improper
purpose or that the defendant used improper means. The terms are not synonymous: this court
has recognized that
in government delay cases, proving improper purpose requires showing that the
defendant delayed plaintiff with the purpose of improperly preventing plaintiff' s
land development, and proving improper means requires showing that the
defendant arbitrarily singled out for delay a particular plaintiff or type of plaintiff.
27
No. 44404 -6 -II
Libera, 178 Wn. App. at 677 ( citing Pleas v. City of Seattle, 112 Wn.2d 794, 804 -06, 774 P. 2d
1158 ( 1989); Westmark, 140 Wn. App. at 560 -61). Accordingly, to prove that the County
interfered to further an improper purpose or by virtue of an improper means, WVII must
demonstrate not only that the County did interfere but that it had a duty not to interfere. Libera,
178 Wn. App. at 676. We conclude that WVII fails to raise a genuine issue of material fact as to
improper purpose and improper means.
a. IMPROPER MEANS
WVII' s argument with regard to improper means is threefold. Attempting to draw
analogies to Westmark, WVII takes issue with ( 1) the additional delay caused by the County' s
suspension of the application process while it waited for the state to respond to one of its inquiries,
2) the County' s interference with KCSD, which caused KCSD to terminate its relationship with
WVII, and ( 3) the delay caused by the County' s correspondence with DOH, including its repeated
representations that the development did not comply with the GMA and the County' s
comprehensive plan.
In the permitting context, one example of an improper means is imposing an extraordinary
delay. Westmark, 140 Wn. App. at 560. WVII relies heavily on Westmark, an instructive decision,
but one that is nevertheless distinguishable from the facts here. In Westmark, a plaintiff in
unincorporated King County applied to King County fora permit to build an apartment complex.
140 Wn. App. at 543 -44. While the application was pending and when King County was nearly
ready to make a decision on the developer' s permit, the city of Burien incorporated the area and
assumed permitting responsibility. Westmark, 140 Wn. App. at 544. The city then delayed
28
No. 44404 -6 -II
approving the developer' s permit for a period of years when the typical response time was 30 to
120 days. Westmark, 140 Wn. App. at 561.
The evidence revealed that Burien had incorporated in part to stop the development of
apartment buildings and that the specific development at issue was one of only a few proposed
projects that Burien took over when there were as many as 100 others pending in the area.
Westmark, 140 Wn. App. at 559. The Westmark court found that Burien had employed improper
means to delay the permitting process. 140 Wn. App. at 560.
Specifically, the city' s SEPA decision took more than 3 years when ordinarily it should
take between 30 and 120 days. Westmark, 140 Wn. App. at 561. City employees made decisions
that resulted in additional delay without ever having reviewed the project' s files. Westmark, 140
Wn. App. at 559. And despite the fact that the developer immediately provided any requested
information, Burien would not provide straight answers. Westmark, 140 Wn. App. at 560 -61.
Here, the County took 19 months to issue a SDAP when, by ordinance, the decision should
take no more than 78 days. Former KCC 21. 04. 110( A). But the delays here, unlike those in
Westmark, were not caused by the County' s use of "improper" means. The record demonstrates
that the County did temporarily suspend the application process, but the County did so only
because it anticipated guidance from the state and then Governor Gregoire regarding what the
County felt was an untenable position.
The County wrote a letter to the governor in which it recognized the conflict that arose
where ( as here) a sewer system designed for urban use was nevertheless permitted to serve a rural
area by virtue of the fact that those areas involved " pre -GMA vested lot[ s]." CP at 901.
Understandably, the County was hesitant to proceed with the WVII permitting process because it
29
No. 44404 -6 -II
believed doing so made it susceptible to liability for violating the GMA. Even though the vested
rights doctrine rendered the County powerless to deny WVII building permits, it became aware
that extending urban services outside urban growth areas was contrary to current GMA goals and
policies. WVII fails to show how the delay caused by the County' s reasonable appeal to the State
for guidance constitutes " improper means" for the purpose of a tortious interference claim.
Moreover, WVII' s allegation that the County improperly injected itself into dealings
between KCSD and WVII, causing the relationship to deteriorate, is unpersuasive. WVII is correct
that the County expressed its displeasure with the notion that KCSD would serve as the owner or
operator of the LOSS for WVII. But again, the County did so because it was of the opinion that
the controlling statutes and regulations did not permit an entity like KCSD to manage the LOSS.
The County also stated unequivocally that despite its position, it could not prevent KCSD from
reaching an agreement with WVII should it decide to. Furthermore, by the time the County
expressed its sentiment to KCSD, WVII had already indicated that it had decided to use a " DOH
approved private management entity" instead. CP at 135. WVII again fails to show that the
County interfered using " improper means."
Finally, WVII alleges that the County interfered with the development in part by " falsely ".
telling DOH that the development did not comply with applicable land use designations. But in
context, the County simply relayed its concern that the project appeared inconsistent with the GMA
and in potential violation of the State' s duty to ensure that approved projects are consistent with
local planning mandates. And again, the County expressly reminded DOH that the County had no
authority to deny the project. Furthermore, the County' s position that the LOSS did not comply
with the GMA was accurate. The GMA endeavors to prohibit the extension of urban services to
30
No. 44404 -6 -II
rural areas. RCW 36. 70A. 110( 4). We conclude that even reviewing the evidence in WVII' s favor,
the delays here do not rise to the level of " extraordinary" delay by use of improper means as
contemplated by Westmark.
Another example of an improper means is singling out a project by imposing additional
requirements not contained in the applicable statute. Pleas, 112 Wn. 2d at 796 -97. But here, the
County did not and could not impose the single ownership condition. That decision rested with
the DOH. WAC 246 -272B- 02150. WVII also failed to show that the County singled out its
proposed development in the permitting process as compared to other similarly situated projects.
Unlike the facts in Westmark, WVII does not attempt to show that the County' s alleged
interference with DOH was limited to its development efforts or even to its type of development.
In other words, the County could consistently issue the development permits and argue to DOH
that an on -site sewer system serving a high density site in a rural area should not be approved by
DOH because it is inconsistent with the County' s current comprehensive plan and the GMA' s
provisions regarding development outside an urban growth area. This is a rational position for the
County to take. The County argues that its statements cannot constitute improper means because
the County was " merely asserting an arguable interpretation of existing law." Leingang v. Pierce
County Med. Bureau, Inc., 131 Wn.2d 133, 157, 930 P. 2d 288 ( 1997). We agree with the County
that WVII fails to show a material issue of fact as to whether the County arbitrarily singled out for
delay WVII' s development.
b. IMPROPER PURPOSE
While improper purpose and improper means are separate inquiries, " impropriety may be
more easily found if the means of interference was wrongful." Pleas, 112 Wn.2d at 806. Where
31
No. 44404 -6 -II
a municipality singles out a project, it is an improper purpose to do so for the purpose of political
advantage, such as placating a state representative or a community group. Westmark, 140 Wn.
App. at 560; Pleas, 112 Wn.2d at 796.
In Pleas, our Supreme Court identified an improper purpose for the sake of a tortious
interference claim where the city of Seattle actively obstructed an apartment complex project
specifically to gain the favor of politically active and influential organizations. Pleas, 112 Wn.2d
at 805. The city consistently delayed processing the application to correspond with a group of
concerned citizens, defied court orders to continue to process the project' s application, encouraged
the citizen' s group to petition for a favorable rezone to block the project, and otherwise bypassed
ordinary procedures to appease its constituents. Pleas, 112 Wn.2d at 796 -800. And in Westmark,
Burien obstructed the apartment building in part to please a state representative who lived near the
proposed site and actively opposed the development. 140 Wn. App at 560.
Here, although there was considerable community opposition to the WVII development,
this fact alone does not indicate that the County intentionally caused delay for the sole purpose of
placating its constituents. Commissioner Bauer did tell a constituent that the " County staff and
elected officials believe that they have actively worked to find ways within the law to deny this
project." CP at 436. But this statement was only a small portion of an otherwise lengthy e -mail
sent to a concerned citizen to explain why the County could not prevent the project from going
forward, and simultaneously to express agreement that the project was. not " good for the area or
consistent with current land use standards." CP at 436. Importantly, the commissioner said that
his understanding was that the County had worked to find ways within the law to deny the project.
While improper purpose is not synonymous with " illegal" purpose, it follows logically that a
32
No. 44404 -6 -II
County' s pursuit of legally available avenues to address its concerns would necessarily not
constitute " improper purposes." Unlike Pleas, the County here did not use improper means to
single out the Woods View project, and WVII fails to show that the County had an improper
purpose in communicating with DOH. We conclude that there is no genuine issue of material fact
as to improper purpose.
In summation, to avoid summary judgment, WVII must show that a genuine dispute exists
or that they have established all five elements of tortious interference. Here, WVII fails to establish
a genuine issue of material fact as to the improper purpose or improper means element. Thus,
summary judgment is properly granted as to WVII' s intentional tortious interference claim.
Consequently, we decline to examine the issues of damages or causation.20
VII. TAKINGS
WVII makes three arguments to support its takings claim. It argues ( 1) that a permanent
and substantial reduction in property value is sufficient to state a successful takings claim, ( 2) the
County compelled DOH to require WVII to burden its property with a covenant prohibiting the
transfer of individual lots in the development, and ( 3) the County engaged in "a set of guerilla [sic]
tactics unreasonably intended to hold up and prevent construction of a project," thus effecting a
20 The County argues that the tortious interference claim is collaterally estopped by the federal
court' s decision in this case. Because the tortious interference claim fails on its merits, we do not
address the County' s collateral estoppel argument.
33
No. 44404 -6 -II
21
taking. Reply Br. of Appellant at 29. We affirm summary judgment as to takings because WVII
cannot show that the County' s actions resulted in a taking.
Washington State Constitution article I, section 16 states that "[ n] o private property shall
be taken or damaged for public or private use without just compensation having been first made."
Under existing Washington and federal law, a police power measure can violate article I, section
16 of the Washington State Constitution or the Fifth Amendment of the United States Constitution
and thus be subject to a takings challenge when ( 1) a regulation affects a total taking of all
economically viable use of one' s property, Lucas v. South Carolina Coastal Council, 505 U.S.
1003, 1019, 112 S. Ct. 2886, 120 L. Ed. 2d 798 ( 1992); ( 2) the regulation has resulted in an actual
physical invasion upon one' s property, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 433, 102 S. Ct. 3164, 73 L. Ed. 2d 868 ( 1982); ( 3) a regulation destroys one or more of the
fundamental attributes of ownership ( the right to possess, exclude other, and to dispose of
property), Presbytery ofSeattle v. King County, 114 Wn.2d 320, 330, 787 P. 2d 907, cert. denied,
498 U.S. 911 ( 1990); or (4) the regulations were employed to enhance the value of publicly -held
property, Orion Corp. v. State, 109 Wn.2d 621, 651, 747 P. 2d 1062 ( 1987), cert. denied, 486 U. S.
21 In its opening brief, WVII argues only that the superior court should not have dismissed the
takings claim because the County did not specifically request summary judgment on that claim.
We reject WVII' s argument that the County did not request summary judgment on the takings
issue because it did so in a supplemental brief
34
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1022 ( 1988); Manufactured Housing Cmtys. of Wash. v. State, 142 Wn2d 347, 355 -56, 13
P. 3d 183 ( 2000). 22
Under these controlling legal principles, WVII fails to show that a taking occurred.
A. A PERMANENT AND SUBSTANTIAL REDUCTION IN PROPERTY VALUE
Relying on Borden v. City ofOlympia, 113 Wn. App. 359, 374, 53 P. 3d 1020 ( 2002), review
denied, 149 Wn.2d 1021 ( 2003), WVII claims that a permanent and substantial reduction in
property value is sufficient to state a takings claim. But in Borden, the court found that no taking
had occurred based on a flooding incident, and WVII does not explain how Borden supports its
position in any respect. WVII also relies on Lambier v. City ofKennewick, 56 Wn. App. 275, 279,
783 P. 2d 596 ( 1989), review denied, 114 Wn.2d 1016 ( 1990).
In Lambier, due to the city' s design and construction of a road, up to 12 vehicles ended up
crashing in the Lambiers' yard over time, causing the resale value of their home to plummet to
nearly half its value. 56 Wn. App at 277. The court noted that the city affirmatively undertook
the construction project that resulted in the Lambiers' damages. Lambier, 56 Wn. App. at 280.
WVII argues summarily that a taking is established so long as it can show a " subsequent decline
in market value" resulting from the regulation. Lambier, 56 Wn. App. at 279 ( citing Martin v.
Port of Seattle, 64 Wn.2d 309, 320, 391 P. 2d 540 ( 1964), cent. denied, 379 U.S. 989 ( 1965)). But
we note that both Borden and Lambier are distinguishable because the plaintiffs there alleged a ( 1)
22 Regulations have also been found unconstitutional because they violate substantive due process
whether or not a total taking invasion has actually occurred. See Guimont v. Clarke,
or physical
121 Wn.2d 586, 608, 854 P. 2d 1 ( 1993), cert. denied, 510 U. S. 1176 ( 1994); Margola Assocs. v.
City of Seattle, 121 Wn. 2d 625, 649, 854 P. 2d 23 ( 1993). WVII does not assert a substantive due
process claim.
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government' s ( 2) physical invasion that ( 3) resulted in damages. And here, WVII does not allege
a government' s physical invasion onto WVII land that caused damages. Again WVII fails to
explain how Borden or Lambier support its takings claim here.
Perhaps more to the point, neither Lucas nor Guimont v. Clarke, 121 Wn.2d 586, 854 P. 2d
1 ( 1993), cert. denied, 510 U.S. 1176 ( 1994), upon which WVII relies, suggest that a reduction in
property value alone constitutes some sort of per se taking. As just noted, Lucas held that a taking .
occurs when a regulation eliminates all economically viable use of one' s property. 505 U.S. at
1019. Our Supreme Court incorporated this rule into its threshold test in determining whether a
regulation has worked a taking. Guimont, 121 Wn.2d at 600. We recognize that this appeal does
not challenge a regulation as did the appeals in Lucas and Guimont. Nonetheless, WVII' s apparent
position that any substantial loss of property value alone is a taking is at odds with the rationales
underlying both these decisions. If the loss of some economically viable use is not per se a taking,
then neither is the loss of some property value.
B. FUNDAMENTAL ATTRIBUTE OF PROPERTY OWNERSHIP
Citing Manufactured Housing, WVII next argues that a property owner has the unrestricted
right to dispose of it and anything that destroys that right without compensation constitutes a
taking. WVII claims that the County compelled DOH to require WVII to burden its property with
a covenant prohibiting the transfer of individual lots and these actions by the County constitute a
taking. This argument fails.
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The central flaw in WVII' s position is that the County had no legal authority to compel the
DOH to require anything of WVII. That authority rested with DOH alone. The County simply
asserted a reasonable, legal position to DOH, and the DOH made its own decision in response.
The County did not interfere with WVII' s property ownership rights in any manner.
C. TAKING BY DELAY
Finally, WVII argues that the County engaged in "a set of guerilla [sic] tactics unreasonably
intended to hold up and prevent construction of a project," thus effecting a taking. Reply Br. of
Appellant at 29. WVII cites to no authority, and we have found none, for the position that
government delay can constitute a taking. "' Where no authorities are cited in support of a
proposition, the court is not required to search out authorities, but may assume that counsel, after
diligent search, has found none. "' Nguyen v. City of Seattle, 179 Wn. App. 155, 171, 317 P. 3d
518 ( 2014) ( internal quotation marks omitted) ( quoting State v. Logan, 102 Wn. App. 907, 911
n. 1, 10 P. 3d 504 ( 2000)).
Accordingly, the County' s actions do not constitute a taking as a matter of law. The
superior court did not err in granting summary judgment on WVII' s takings claim and we affirm.23
23
Accordingly, we do not reach the issue of whether the takings claim was collaterally estopped
by the federal court' s decision.
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CONCLUSION
We reject the County' s LUPA and statute of limitations arguments. Regarding the superior
court' s grant of summary judgment on the issues of standing, negligence, takings, and tortious
interference, we affirm.24
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
We concur:
24 The County argues that it cannot be held liable for its communications to DOH under the Noerr-
Pennington doctrine. E. R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127, 81 S. Ct.
523, 5 L. Ed. 2d 464 ( 1961). That doctrine immunizes petitions to government from certain types
of liability. Because we hold that WVII' s claims against the County fail, we need not address the
County' s immunity under this doctrine.
38