Robinett Investment Co Llc., V. State Of Wa. Dept Of Transportation ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ROBINETT INVESTMENT COMPANY,
LLC, a Washington limited liability No. 85424-1-I
company; JGP INVESTMENT, LLC, a
Washington limited liability company; DIVISION ONE
and JEFF PETTIT, individually,
UNPUBLISHED OPINION
Appellants,
v.
STATE OF WASHINGTON,
DEPARTMENT OF
TRANSPORTATION,
Respondent.
BIRK, J. — Robinett Investment Company, LLC, Jeff Pettit, and JGP
Investment, LLC (collectively, “Appellants”) are owners of several parcels of land
nearby State Route (SR) 532. A frontage road provides access from certain of
their parcels to SR 532. The State claimed the parcels were restricted to access
consisting of a “Type B” approach, which would limit the parcels’ access to SR 532
to farm use only. Disputing this, and hopeful of establishing a residential plat on
their parcels, the Appellants filed this lawsuit seeking declaratory relief that their
parcels were not burdened with access rights restrictions. The superior court
granted the State’s motion for summary judgment and dismissed the lawsuit. The
current record lacks evidence that Type B approach restrictions burden the
parcels. We therefore reverse and remand for further proceedings. However, to
No. 85424-1-I/2
the extent of the current record, no genuine issue of material fact exists on this
issue and should the State be unable to produce evidence of a Type B approach
restriction on remand, summary judgment must be granted in Appellants’ favor.
I
A
The parcels whose access to SR 532 is at issue took their present shape
from the construction of that highway bisecting the original parcels of which they
were part. In 1957, the state director of highways authorized a survey for the
improvement of former SR 532, and the State determined that it would be more
economical to construct a new alignment than improve the existing highway. In
February 1966, the Washington State Highway Commission issued a “Report on
the Location and Access Features of Secondary State Highway No. 1-Y (SR 532)”
for the stretch serving the lands in question. The report planned “a partially
controlled limited access highway,” defined as “ ‘a highway where the right of
owner or occupants of abutting land or other persons to access, light, air, or view
in connection with the highway is controlled to give preference to through traffic to
a degree that, in addition to access connections with selected public roads, there
may be some crossings and some private driveway connections at grade.’ ”
Some of the terminology used in the report was later explained at a
subsequent public hearing on the new route. At the hearing, a witness from the
state highway department explained that one kind of allowed “approach” was a
Type B approach. The witness testified a “[T]ype-B approach” is “normally twenty
feet wide and intended for normal operation of a farm.” If an approach is
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No. 85424-1-I/3
designated for two owners or more “it will be designated by the number of owners
on the plan.”1
A document dated March 8, 1966, is labeled “Vicinity and Total Parcel Detail
Map.” It showed a schematic of the route and identified the parcels along the route
with numbers. The new route crossed—and therefore bisected—several parcels.
The new route diagonally crossed the line between parcel 1-4515 and parcel 1-
4516.2 This left most of parcel 1-4515 and a small sliver of parcel 1-4516 on the
north side of the new route and left a small sliver of parcel 1-4515 and most of
parcel 1-4516 on the south side of the new route. To the east of these two parcels
were four more parcels, numbered 1-4517, 1-4518, 1-4519, and 1-4520, which
were bisected also.
Historically, these parcels had road access to a road to the north of where
the new highway ran. A March 8, 1966 detail of a planned frontage road appended
to the plaintiff’s complaint3 shows that a frontage road was planned at this location
1 The treatment of another property on the route not at issue shows the
highway department’s understanding of a “farm” included a “tree farm.” In the
State Highway Commission’s approval of the route, it denied in part the request of
the owner of an unrelated property for a road approach, to support its operation of
a gravel pit and a “tree farm.” The commission ruled that “the potential frequency
of traffic movements from a gravel pit operation would be detrimental to the safety
of the highway users,” but explained that “[t]imber may be removed over a Type B
approach.”
2 Parcel 1-4515 is not labeled on the March 8, 1966 Vicinity and Total Parcel
Detail Map, but there is no dispute about which parcel it is.
3 We believe this same document was made part of the summary judgment
record as exhibit D-2 to the March 13, 2023 declaration of Mara Powers. However,
the exhibit to Powers’s declaration is not legible either in the original clerk’s papers
or in the more legible set attached to appellants’ brief.
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No. 85424-1-I/4
on the south side of the new highway and would provide street access to the
southern portions of these parcels cut off from the old road to the north.
The March 8, 1966 detail of the frontage road showed it branching from the
highway at “station 276+43.” The planned frontage road branched southward from
the highway, and curved eastward to reach the other bisected parcels:
As explained at the public hearing, the plan sheets for the new route indicated the
access control by “diagonal hashers at the point where the access rights will be
restricted.” Thus, for the originally planned frontage road, the access control ran
along the south edge of the highway, to the indicated frontage road, south around
the sliver of parcel 1-4515 south of the highway, south along the eastern edge of
parcel 1-4516, and then eastward along the new northern edges of the southern
portions of parcels 1-4517 and 1-4518. The March 8, 1966 detail included a “Road
Approach Schedule,” which listed a type “B-2” approach stationed along the
frontage road noted as “FR [frontage road] 8+06 Rt [right].”
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No. 85424-1-I/5
On April 6, 1966, the Washington State Highway Commission convened a
public hearing on the new limited access highway at the Stanwood City Hall. The
State presented the testimony of, among others, David Yates, District Access
Design Engineer for the state highway department. Yates testified the proposed
design included both “public road intersections” and “private approaches for certain
limited or specific purposes.” He explained an approach to the limited access
facility would need to “serve the property . . . for which it is granted” and be safe
according to design principles. Yates stated in reference to Type B approaches, if
the property is “later subdivided or developed,” then “some alternate means of
access has to be arranged, or [a] change in the access that is satisfactory to the
Highway Commission.” Yates described an approach “as granted” as “limited by
deed in the right of way for the specific purpose as given.”
When Yates addressed the parcels at issue, he explained that the north
side properties had access to the existing highway so there would be no direct
approaches to the new highway, and the remainder of parcel 1-4516 on the north
side of the highway did not justify an approach. In contrast, the remainder of parcel
1-4515 on the south side and the major portion of parcel 1-4516 “will have an
access to the frontage road.” Yates testified the Type B approach provided for
Rasmus Larsen and Port Blakely Mill Company was “designated as parcel 1-
4516,” and was “within the limits of the access control of the frontage road
intersection.” Larsen was the owner of parcel 1-4515, and Port Blakely was the
owner of parcel 1-4516. Yates said the State “would not allow a commercial
approach within the distance of 200 feet in the same manner of protecting access
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No. 85424-1-I/6
of other county road intersections.” In explaining an earlier segment of the plan,
Yates had explained the access control for this facility was either 200 feet from
Highway 532 or 110 feet from a frontage road intersection.
Yates said the planned approach was “a type-B approach on to that
frontage road.” That prompted an interjection from the attorney for Port Blakely,
who stated he did not understand how Port Blakely would get to the frontage road.
Yates clarified they would have an approach coming from the northeast corner of
the property limited to a Type B approach. Yates again explained the approach
was “within the access control line.” He said, “We don’t list these approaches on
the frontage road or elsewhere outside those limits. Any approach that is listed on
any of these sheets is one planned across the access line and limited to these
specific purposes for which it is designated.”
At that point, Walter Hoon spoke. Hoon was the owner of parcel 1-4517,
the easterly neighbor of Port Blakely’s parcel 1-4516 and the next parcel served
by the frontage road. Hoon had a burial vault company and a septic tank operation
on parcel 1-4517, and used a truck to haul these from the property. Assistant
Attorney General Bob Lundgaard then asked Yates to clarify that there was “no
control of access” on other portions of the frontage road. Yates testified that “from
approximately station 9, plus 50 to the east on this frontage road,” 4 there is “no
4 The referenced engineer’s stationing is shown on the above detail of the
originally planned frontage road. The frontage road departs the main highway at
its station 276+43, and at “FR 7+00.” Along the frontage road, the diagonal
hashers marking the access control line end approximately halfway between the
second hash mark from “FR 7+00” and the hash mark labeled “10,” i.e., at
approximately station 9+50. It is past this point, i.e., past the diagonal hashers,
where Yates indicated there is “no control of access.”
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No. 85424-1-I/7
control of access and driveways could be permitted so long as they met normal
driveway standards, normal approach standards at any approach in that area.”
Lundgaard asked, “Would it be the Department’s intention to limit the type of use
the property could be put south of the frontage road?” Yates answered, “No.”
But Yates quickly clarified it was different for the Port Blakely property. After
Yates explained there was “no control of access” along the eastern portion of the
frontage road, Port Blakely’s attorney again interjected, “Would that apply to the
Port Blakely Mill Company property also?” Yates said that would require extending
the frontage road to the west to make a county road:
The Port Blakely Mill Company will be required to use the farm-use
approach, and this would require – to expand that would require
working out as a public road. To make that perhaps a public road
intersection would extend this frontage road to the west or something
of that nature, and it would have to be something – if it became a
county road, it would have to meet the design standards so far as we
have designed of the full intersection which you would then have this
point and its relationship to the intersection with 11.[5] There is
something that could be done.
Another witness confirmed the purpose of the frontage road was to serve otherwise
landlocked property.
On April 18, 1966, the Washington State Highway Commission issued its
findings and order. The commission designated SR 532 as a limited access
highway6 and added a Type C and three more Type B approaches at various
points.
5 The reference to “11” is likely to parcel 1-4511 to the west, in the vicinity
of the planned grade intersection with West Sunday Lake Road.
6 A “limited access facility” is a highway or street especially designated for
through traffic, “and over, from, or to which owners or occupants of abutting land,
or other persons, have no right or easement, or only a limited right or easement of
7
No. 85424-1-I/8
On April 29, 1966, a district engineer addressed a letter to the director of
highways, enclosing three revised sheets for the access plan. One of the revisions
realigned the frontage road. The letter stated field investigation showed
realignment was necessary “due to gradient.” This had developed “since the
hearing.” The revision to the frontage road deleted its planned connection to SR
532, created a new connection to the east, and added a new branch to the frontage
road returning back west to Port Blakely’s parcel 1-4516.7 The revision moved the
access control line so that it no longer traced the parcel boundaries of the southern
portions of parcel 1-4515 and parcel 1-4516, and it deleted the listed Type B
approach from the road approach schedule.
On May 17, 1966, the commission issued its Supplemental Findings and
Order adopting four changes to the frontage road:
1. Relocate the grade intersection for the frontage road on the
right from Highway Engineer’s Station 276+43.0 to Highway
Engineer’s Station 279+43.0.
2. Delete the Type B-2 road approach shown at FR 8+06.
3. Add the FR2 Line to provide access to Parcels 1-4515 and 1-
4516.
4. Revise the limited access control for the FR2 Line.
access, light, air, or view by reason of the fact that their property abuts upon such
limited access facility.” RCW 47.52.010.
7 Appellants appended a “MORE LEGIBLE COPY OF CP 306” to their brief,
which depicts a colorized version of an exhibit in the clerk’s papers. At oral
argument, the parties agreed that the appended exhibit was an accurate copy of
the exhibit before the superior court, so we consider it properly before us. Wash.
Ct. of Appeals oral arg., Robinett Inv. Co. v. Dep’t of Transp., No. 85424-1-I (May
29, 2024), at 01 min., 21 sec. to 01 min., 47 sec. and 08 min., 12 sec. to 08 min.,
20 sec., https://tvw.org/video/division-1-court-of-appeals-2024051175/.
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No. 85424-1-I/9
A new plan sheet showed the new frontage road diverging from the highway 300
feet to the east at station 279+43.0, the branch returning west to Port Blakely’s
parcel 1-4516, and a new access control line.
On May 23, 1966, the commission adopted this revised plan. The revised
frontage road was planned as follows:
Consistent with the revision sheet deleting the previously listed Type B approach
from parcel 1-4516 to the frontage road, the adopted revision listed no approaches
on the road approach schedule. The revision still included the definitions of a Type
B approach and a “No. 2” designation indicating an approach served more than
one property. To the extent of our record, the May 17, 1966 supplemental findings
and order indicating “Delete the Type B-2 road approach” is the last reference to
a Type B restriction for the next 56 years.
9
No. 85424-1-I/10
The next events indicated in the record are the conveyances associated
with the new highway. On November 30, 1966, Rasmus and Stella Larsen
conveyed to the State “that portion” of their land, parcel 1-4515, lying between the
described right of way lines for the highway. The deed also stated, “[T]he Grantors
herein convey and warrant to the State of Washington all rights of ingress and
egress (including all existing, future or potential easements of access, light[,] view
and air) to, from and between” SR 532 “and the remainder” of their parcel.
On December 15, 1966, Julius and Charlotte Knoth conveyed to the State
“[a] strip of land” described by reference to the new highway plan and to township
and range, Willamette Meridian. The deed did not otherwise describe the Knoths’
property, but stated, “Grantors herein convey and warrant to the State of
Washington all rights of ingress and egress (including all existing, future or
potential easements of access, light, view and air) to, from and between” SR 532.
The State describes this as being for parcel 1-4518.
On January 6, 1967, Loyd and Elouise Evens conveyed to the State “all
rights of ingress and egress (including all existing, future or potential easements
of access, light, view and air) to, from and between” SR 532 and described land,
which the State identifies as parcel 1-4518-A. This deed states, in addition,
“Except that as a part of the consideration of this transaction, the State agrees to
construct on the right of way a frontage service road along the southerly side of
said highway and to which frontage service road only, the grantors, their heirs,
successors or assigns reserve the right of reasonable access.”
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No. 85424-1-I/11
On March 15, 1967, the State filed a condemnation petition in Snohomish
County Superior Court against Port Blakely and others, seeking condemnation
among other properties of parcel 1-4516. Defining parcel 1-4516 as “Tract ‘X’,”
the State sought to condemn “that part” of the tract lying between the defined lines
of the SR 532 right of way “TOGETHER WITH all rights of ingress and egress, if
any (including all existing, future or potential easements of access, light, view and
air) to, from and between said highway and the remainder of said Tract ‘X’.” On
September 28, 1967, the court entered its stipulated judgment and decree of
appropriation. The decree described the condemned access rights in two different
ways. It ordered that the State pay $450.00 “for the appropriation and use” of
described lands, followed by a “to wit” clause describing that part of parcel 1-4516
lying between the described lines of the right of way “TOGETHER WITH all rights
of ingress and egress, if any (including all existing, future or potential easements
of access, light, view and air) to, from and between said highway and the remainder
of said Tract ‘X.’ ” The decree ordered that the State “shall be and become the
owner in fee simple of the lands, real estate, premises and appurtenances and
other property sought to be appropriated herein, together with the access rights,
including air, view and light, of the property abutting the right of way being acquired
herein from said respondents.”
On October 10, 1967, Walter and Lorraine Hoon conveyed to the State “[a]
strip of land” described by reference to the new highway plan and to township and
range, Willamette Meridian. The deed did not otherwise describe the Hoons’
property, but stated, “Grantors herein convey and warrant to the State of
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No. 85424-1-I/12
Washington all rights of ingress and egress (including all existing, future or
potential easements of access, light, view and air) to, from and between” SR 532.
The State describes this as being for parcel 1-4517. This deed states, in addition:
“EXCEPT that as a part of the consideration of this transaction, the State agrees
to construct on the right of way a frontage service road along the southerly side of
said highway and to which frontage service road only the Grantors, their heirs,
successors or assigns reserve the right of reasonable access.”
After establishment of the new SR 532 right of way, the new configuration
of the parcels is shown by the following diagram:
The two alignments of the frontage road came to be known as 19th Avenue
NW and 267th Street NW. There was never a formal transfer of the frontage road
to the county. In 1974, the State transferred “Road Log” responsibilities for
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No. 85424-1-I/13
maintenance of county roads to the respective counties. On September 17, 1974,
Snohomish County created a “Road Log” for 19th avenue and 267th street each
as a “NEW ROAD,” identifying them by an abbreviation for “County Road.” At least
starting by 1992 the county maintained them as county roads.
On February 27, 2004, Port Blakely Tree Farms (LP)8 deeded parcel 1-4516
and the “South Parcel” to Robinett, as nominee for undisclosed principals. In 2004,
Robinett conveyed the land to Pettit, at the time the owner of two neighboring
parcels. Pettit conveyed the parcels to JGP.
B
In January 2019, Pettit filed with Snohomish County an application for a
rural cluster subdivision named “The Reserve at Sunday Lake,” embracing parcel
1-4516, the South Parcel, and land he owned from parts of parcel 1-4517 and
parcel 1-4518. On April 18, 2019, the Department of Transportation addressed a
letter to a traffic consultant concerning SR 532 and The Reserve at Sunday Lake.
The department indicated that “[d]ue to the small number of new trips added as a
result of this new development,” the department “will not require any mitigation
actions” for SR 532. Robinett entered into a purchase and sale agreement with
Pettit’s limited liability company to purchase the proposed preliminary plat. The
county granted preliminary plat approval. The preliminary plat showed a new
roadway connecting to the west end of the frontage road.
8 The record does not indicate the chain of title from previous Port Blakely
entities down to 2004.
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No. 85424-1-I/14
On January 13, 2022, Dawn Anderson, a development services engineer
with the Department of Transportation, sent an e-mail to a traffic consultant on the
project. Anderson’s e-mail stated she had “done some additional research on the
access for this property.” She said, “it [is] still showing no access.” Anderson’s e-
mail stated, “The deeds for the other properties abutting the frontage road
specifically state access to the frontage road,” but “the deed for the property in
question clearly states no access to any part of SR 532 including the frontage
road.”9 Anderson acknowledged the county’s having stated it maintains the
frontage road, but this “does not negate the limited access rights or what was
decreed in the court documents or deeds.” Based on discrepancies in the stated
acreage of the former Port Blakely properties, Anderson speculated that Port
Blakely “at one time” owned “additional acreage” and “there was access to one of
the County roads.”10 Having speculated there was another road access for parcel
9 The record does not clearly indicate the documents Anderson’s e-mail
described. As noted above, the Evans deed covering what the State calls parcel
1-4518-A and the Hoon deed the State links to parcel 1-4517 both contained an
exception reflecting the State’s agreement to construct the frontage road and
provide reasonable access to it from those parcels. All of the deeds and the
condemnation decree conveyed to the State any rights of ingress and egress to
SR 532. But none of the instruments before the court “state,” “clearly” or otherwise,
that any parcel specifically has “no access” to the frontage road. Assuming
Anderson was looking at the same instruments in our record, the best sense we
can make of the e-mail is that she inferred from two parcels having expressly
reserved access to the frontage road that other parcels whose deeds lacked similar
language lacked similar access.
10 In response to the Appellants’ motion for reconsideration of the trial
court’s summary judgment order, the State submitted documents it says show that
in 2020 parcel 1-4516 obtained a new easement permitting access to West Sunday
Lake Road across other land. The trial court did not rest its decision on such a
factual determination and the record and briefing is inadequate to permit this court
to do so.
14
No. 85424-1-I/15
1-4516 and the South Parcel, Anderson continued, “hopefully when they short
platted the properties they included an easement, if they did not then they land
locked the property.” Anderson’s speculation that “they” may have inadvertently
“land locked the property” implicitly assumed that parcel 1-4516 had no access to
the frontage road and SR 532. Continuing with this assumption, Anderson
concluded, “It seems to me that the State would not ‘forget’ access for this property
when they took care of it for the other properties.”
The State’s position that parcel 1-4516 had no access to the frontage road
delayed closing on the sale for the development. At some point, the State took the
position that it had acquired the properties’ access rights to SR 532 in the 1967
condemnation action, so Robinett and Pettit “would have to purchase them back”
to subdivide the property.
C
Appellants’ filed their complaint on March 15, 2022. The complaint alleged
the 1967 decree only eliminated parcel 1-4516’s abutting access to SR 532 but not
its non-abutting access through the frontage road.
The State answered the complaint on April 18, 2022. The State now
acknowledged that the supplemental findings by the Highway Commission dated
May 17, 1966 ordered the plan revised to provide access to parcel 1-4516 along
the frontage road, but only “consistent with a Type B-2 use.” The State alleged the
decree “did not provide for such access.” To the extent shown in our record, the
State’s April 18, 2022 pleading is the first reference to a Type B approach since
the May 17, 1966 supplemental findings and order indicating “Delete the Type B-
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No. 85424-1-I/16
2 road approach.” The State denied that Appellants were entitled to relief, “with
the exception” of a prayed for declaratory judgment finding that the 1967 stipulation
and judgment “be revised” to provide access to parcel 1-4516 along the frontage
road, “consistent with a Type B-2 use.”
By second amended complaint, the Appellants sought declaratory relief that
parcels 1-4515, 1-4516, 1-4517, 1-4518 have “unrestricted access rights” to SR
532, subject only to application for an access permit without compensation due to
the State. In its November 28, 2022, answer to the second amended complaint
the State prayed for declaratory judgment “finding Parcel 1-4515, 1-4516, 1-4517,
and 1-4518” have “access to SR 532 from the FR and FR2 Line . . . consistent with
a Type B use.” To the extent of our record, this pleading is the first time the State
ever asserted that parcel 1-4517 or parcel 1-4518 were limited to a Type B use.
The State asked that Appellants’ claims be dismissed and that if Appellants wish
to “increase, modify, or change the type of existing access, or seek new access to
SR 532,” they be directed to comply with the State’s “application and administrative
process.”
On February 14, 2023, the State moved for summary judgment. The State
argued that in the revision to the frontage road the limited access line “was
adjusted to establish Type-B access control from the frontage road at the grade
intersection.” For this argument, the State relied on a declaration by LeRoy
Patterson, the State’s highway access control and hearings manager filed the day
the State moved for summary judgment. Patterson testified the revision adjusted
the limited access line “to establish Type B access control from the frontage road
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No. 85424-1-I/17
at the grade intersection.” Patterson also testified that “[i]n the late 1960s and early
1970s,” parcels 1-4515, 1-4516, 1-4517, and 1-4518 were “predominantly
farmland.”11 Patterson also testified that “[s]ince the construction of SR 532 . . .
the Washington State Highway Commission permitted Type B access for Parcel
Nos. 1-4515, 1-4516, 1-4517, and 1-4518.”12 Finally, Patterson testified that the
State informed Appellants “[i]n 2022” that the proposed plat had only Type B
access and they “would need to purchase from the State the access rights
required” to develop it.
The State described the first of eight presented issues as whether the court
should “reopen or reconsider a judgment and conveyances that have been
finalized for 50 years and are unambiguous,” and the second as whether the
Appellants were really claiming inverse condemnation because the State had
“possessed and controlled property rights at issue since at least 1967.” Effectively,
the State argued the conveyances granted it all access rights and it had then
extended only Type B access for the parcels. Any greater access would need to
be purchased from the State.
11 Patterson provided no basis for having personal knowledge of the uses
to which the lands in question were put in the 1960s. Patterson’s testimony that
the parcels were “predominantly farmland” directly contradicts the statement of the
owner of parcel 1-4517 at the April 6, 1966 hearing that he used his parcel for a
septic tank business. It also suggests inconsistency with the statements of the
owner of parcel 1-4501 that that land was being used as a gravel pit. There is no
other evidence besides Patterson’s unexplained statement that any land in the
vicinity of the frontage road was “farmland.”
12 Patterson identified no basis for this statement, or for his knowledge that
it could be true. The record reveals nothing predating the State’s November 2022
pleadings in this action indicating it had ever applied a Type B restriction to parcel
1-4517 or parcel 1-4518, and Yates testified affirmatively at the April 6, 1966
hearing that parcel 1-4517 did not have such a restriction.
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No. 85424-1-I/18
The Appellants submitted a declaration from Joseph Smeby, a professional
engineer licensed in Washington. In Smeby’s review of the April 18, 1966 and May
17, 1966 right of way maps, he concluded parcel 1-4516 had access to the frontage
road and all parcels had uncontrolled access not limited to type A or B access.
Smeby notes the commission’s order providing for access had no access controls,
no parcels are identified with restrictions of “Type A” or Type B set out, and an
area of the map where cross hatching would indicate no or limited access was
missing.
The superior court granted the State’s motion for summary judgment and
dismissed the Appellants’ second amended complaint with prejudice. The superior
court attached a letter decision to accompany its order. The superior court ruled
that through the conveyances, the State acquired the properties and access rights
between the properties and SR 532. The superior court ruled, “In 1966 and 1967,
Type B access was the type of access designated as reasonable access for
properties put to Farm Use” and that the parcels at issue “retained, at most, Type
B access to SR 532,” by way of the frontage road. Having concluded that the
parcels had retained only Type B access, the superior court rejected the
Appellants’ claims to greater access as being at best a time-barred takings claim,
a time-barred claim for additional compensation for a taking, and barred by the
subsequent purchaser rule.
II
Appellants contend on appeal that their parcels have direct, uncontrolled
access to the frontage road and access from the frontage road to SR 532. They
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No. 85424-1-I/19
contend that this is so, because the historical record does not support that any of
this access is restricted to a Type B approach. To the extent of this record, we
agree.
A party seeking summary judgment bears the initial burden to show the
absence of a genuine issue of material fact. Young v. Key Pharms., Inc., 112
Wn.2d 216, 225, 770 P.2d 182 (1989). This burden may be met by showing an
absence of evidence to support the nonmoving party’s burden of proof at trial. Id.at 225 n.1. Then, the burden shifts to the nonmoving party to show the existence
of a genuine issue of material fact. Id. at 225. We review an order granting
summary judgment de novo. Id. at 226. We view the evidence and all reasonable
inferences therefrom in the light most favorable to the nonmoving party. Id.Pursuant to the Uniform Declaratory Judgments Act (UDJA), chapter 7.24
RCW, “ ‘[a] person interested under a deed . . . may [ask a court to determine] any
question of construction . . . arising under the instrument . . . and obtain a
declaration of rights . . . or other legal relations thereunder.’ ” Bloome v. Haverly,
154 Wn. App. 129, 140, 225 P.3d 330 (2010) (alterations in original) (quoting RCW
7.24.020). The UDJA’s purpose is to “ ‘settle and to afford relief from uncertainty
and insecurity with respect to rights, status and other legal relations,’ ” and courts
should liberally construe and administer it. Id. (quoting RCW 7.24.120). “The
existence of another adequate remedy does not preclude a judgment for
declaratory relief in cases where it is appropriate.” CR 57; Wagers v. Goodwin, 92
Wn. App. 876, 880, 964 P.2d 1214 (1998). In general, a party challenging the
action of a State agency must follow the Administrative Procedure Act, chapter
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No. 85424-1-I/20
34.05 RCW. See RCW 34.05.510. The State did not assert in its appellate briefing
that the Appellants’ claims fall under or are limited by chapter 34.05 RCW.
A limited access highway differs from a traditional highway. Generally, an
owner of property that abuts a public street or highway has an easement of access
for ingress and egress to and from such roadways. Williams Place, LLC v. State,
187 Wn. App. 67, 84, 348 P.3d 797 (2015). By statute, every owner of property
that abuts a state highway has a right to reasonable access to that highway, unless
such access has been acquired pursuant to chapter 47.52 RCW, but may not have
the right of a particular means of access. RCW 47.50.010(3)(b). But where a new
limited-access highway is established by condemnation in an area where no
highway previously existed, as occurred here, no easement of access exists to the
new facility. State v. Calkins, 50 Wn.2d 716, 719, 314 P.2d 449 (1957).
This case concerns only access to SR 532 by way of the frontage road. To
the extent of our record based on the public hearing, agency orders, recorded
deeds, and the decree of condemnation, none of whose content is in dispute, this
appears to be a question of law which we review de novo.13 See Stone v. Sw.
Suburban Sewer Dist., 116 Wn. App. 434, 438, 65 P.3d 1230 (2003). Appellants
have never claimed that they have a right, as abutting property owners, to enter
the through lanes of SR 532 from where their land abuts the highway. Rather, they
claim only the right to access the frontage road, and from it SR 532. They explain
13 Whether the question of the existence of any restriction on access to the
frontage road is a question of fact or law appears to be an issue of first impression.
We have not found and the parties have not cited any direct authority on this
specific issue.
20
No. 85424-1-I/21
in their brief, “Plaintiffs are not attempting to connect a private drive directly to the
limited-access highway. Rather, Plaintiffs intend to connect to 267th Street, which
later connects to 19th Avenue, which then connects to SR 532 via an already-
existing intersection.”
The State does not seem to dispute, at this point, that Appellants enjoy
access to the frontage road. In its brief on appeal, the State claims the frontage
road was developed “for the purpose of funneling traffic from the abutting Parcels’
driveway approaches to the Type B approach onto SR 532 located within the
limited access control line.” This aligns with the position it eventually took in the
trial court, that parcels 1-4515 through 1-4518 have Type B access to SR 532 by
way of the frontage road. The State argued it possessed and controlled the
frontage road and access between the Appellants’ property and SR 532 since the
late 1960s. This provides the basis for the State’s argument that the Appellants
are untimely in attempting to regain property rights the State acquired decades
ago. The necessary first step leading to this analysis, both as the State argued
and the superior court ruled, is that a Type B approach was imposed on the parcels
whose restraints the Appellants now seek to undo. We disagree that this record
is sufficient to support the existence of restriction to a Type B approach.
The State provides little guidance on its view of how an access restriction
such as the asserted Type B approach restriction is established. But it offers some.
When it answered the second amended complaint, the State asserted a
counterclaim alleging that to “increase, modify, or change the type of existing
access” of the parcels, the Appellants are “required to submit an application and
21
No. 85424-1-I/22
comply with the policy procedures and rules set forth in the Washington State
Department of Transportation Design Manual,” among other things. At oral
argument, when asked to identify the point at which the State imposed an access
restriction here, the State referred to the public hearing calling it the “limited access
hearing.”14 The State described the testimony as “part of the administrative
record,” and argued “the findings and orders were not appealed” and are
“presumed valid.”15 The State therefore seems to say that an agency action was
required for the government to limit the Appellants’ land to farm use, and points to
the 1960s proceedings described above. This is consistent with a regulation
making it clear agency action is authorized to modify an approach: “Once
established, the type, size and location of the approach may be modified by the
secretary of transportation or his designee.” WAC 468-58-100(1)(c).
When did the State impose the asserted Type B restriction? At oral
argument, the State cited two sections of Yates’s testimony for the proposition that
the State assigned an access right to any of the parcels.16 These record citations
fail to support that proposition. At those parts of the hearing, Yates merely
described in general the way limited access highways work and defined Type A
and Type B approaches. Otherwise, Yates testified that parcels 1-4515 and 1-
4516 had a Type B access restriction, but that was under the old design of the
14 Wash. Ct. of Appeals oral argument, supra at 15 min., 05 sec. to 15 min.,
25 sec.
15 Wash. Ct. of Appeals oral arg., supra at 15 min., 54 sec. to 16 min., 26
sec.
16 Wash. Ct. of Appeals oral arg., supra at 14 min., 55 sec. to 15 min., 54
sec.
22
No. 85424-1-I/23
frontage road that was never adopted. Yates never testified and no document at
any point indicated a Type B restriction applied to parcel 1-4518, and Yates
affirmatively testified that parcel 1-4517 had no use restriction.
Even if the public hearing had supported the existence of a Type B
restriction, the plan for the frontage road presented at the hearing was scrapped
less than four weeks later based on field conditions. In its last order before this
court, the commission adopted four changes to the frontage road, including a
deletion of the Type B road approach and adding FR2 to provide access to parcels
1-4515 and 1-4516. The commission adopted the revised plan. The revision sheet
supports this conclusion. The colorized copy of this exhibit depicts the initial plan
to have the frontage road run south from SR 532 adjacent to parcels 1-4516 and
1-4517. The revised, and ultimately finalized plan, saw that change, with that
south-running line marked for deletion by the two green X’s. The box labeled
“Road Approach Schedule” also has a green line crossed through one line of its
contents, signifying deletion. The new and adopted frontage road shows the
connection to SR 532 shift east with a fork road connecting the state highway with
an access road for the parcels.
The commission’s supplemental findings and order is consistent with the
testimony at the 1966 public hearing. Yates testified it was not the department's
intention to limit the type of use of property south of the frontage road outside the
access control line. For parcel 1-4517, Yates testified that there would be no
control of access on the portion of the frontage road servicing the vault and septic
company or use restriction on the property itself. The new frontage road alignment
23
No. 85424-1-I/24
eliminated the access restriction hash marks that had previously burdened parcels
1-4515 and 1-4516. Under the new design, they had access to the frontage road
without crossing the access control line, and as Yates explained at the hearing that
meant there was no need for an approach of a specified type and no use restriction
on the parcels. There are other consistencies: Yates explained that an approach
serving more than one property would be labeled with the number of properties
served, and here the original Type B approach serving two properties was deleted
but it was never replaced with a Type B approach purporting to serve and therefore
restrict four or more properties as the State has argued. Yates also testified that
the access control for this project ran to 110 feet from a frontage road intersection,
so moving the intersection 300 feet to the east and running the road back to parcels
1-4515 and 1-4516 would suggest that they now would be outside the access
control line as parcel 1-4517 was originally, and therefore like that parcel have no
use restriction.
For purposes of the summary judgment standard, the 1966 revision order
deleting the Type B approach with no further action supports that no Type B
restriction applied, but in addition the evidence relied on by the State fails to
support any agency action imposing a use restriction. In his 2022 declaration,
Patterson stated the right of way plan adopted by the commission included
adjusting the limited access line “to establish type B access control from the
frontage road at the grade intersection.” But on that point, the order stated only
“[d]elete the Type B-2 road approach” and “[r]evise the limited access control for
the FR2 line.” Other than the superseded original plan that was never executed,
24
No. 85424-1-I/25
nowhere does the order or any other document before the court impose any Type
B access restrictions. Patterson cites no documents or other agency action during
the last six decades to support his statements. In the absence of any agency
action limiting parcels 1-4515, 1-4516, 1-4517, and 1-4518 to Type B access to
the frontage road, no such restriction exists.
Because the parcels have unrestricted access to the frontage road, and
from it to SR 532 at the intersection built for that purpose, there is no need to
interpret the condemnation decree as to parcel 1-4516 or the deeds conveying
parts of parcels 1-4515, 1-4517, and 1-4518. Clearly, the parcels do not enjoy
access to the through lanes of SR 532 directly from their abutting property lines,
as that would cross the access control line and is prohibited without an established
approach. But they do not have need of such approaches, because, to the extent
of this record, they have direct, unrestricted access, without crossing the access
control line, to the frontage road and from there to SR 532.
This conclusion requires that we reverse summary judgment. Once the
superior court concluded that the parcels retained at most Type B access to SR
532, it would follow that the action sought to regain property rights long ago ceded
to the State. But in the absence of an existing restriction against the parcels to a
Type B approach, the action seeks merely to establish that fact against the State’s
maintaining otherwise, and does not seek to reclaim any property right the
Appellants do not currently already enjoy. It is therefore unnecessary to reach any
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No. 85424-1-I/26
other issues raised by the parties.17 Moreover, we further conclude that the
present record is insufficient to establish a restriction against the parcels to a Type
B approach. Thus, in the absence of other evidence, on the record currently before
this court the Appellants would be entitled on remand to declaratory relief that there
is no restriction against their parcels to a Type B approach.
We reverse and remand for proceedings consistent with this opinion.
WE CONCUR:
17 The issues we need not reach include, among others, any of the State’s
contentions that would follow from a conclusion the Appellants were seeking to
reclaim a formerly ceded property right, Appellants’ claim to “reasonable” access
to SR 532 under RCW 47.50.010(3)(b), or the rights of the South Parcel to SR 532
or to a claimed 1928 public easement, in light of its continued common ownership
with parcel 1-4516 whose access rights are not at this time shown to be restricted.
26