Washington State Court Decisions
November 1993 to November 2009
Updated 11/13/09
- Washington State Supreme and Appellate Court Decisions
- Washington State Court Decisions published within the last 90 days
Washington State Court Decisions Affecting Cities, Towns and Counties
The following decisions are in reverse chronological order: (This is not a complete list of all new court decisions that affect cities, towns and counties in the State of Washington, but a selection of highlights.)
2009
Kailin v. Clallam County, ___ Wn. App.___ (11/9/2009) [Shorelines appeal] Does the shorelines hearings board have subject matter jurisdiction to address a reasonable use exception from the County's critical areas ordinance where that ordinance is not a part of the County's shoreline master program? The court concluded that the hearings board did not have jurisdiction.
Citizens Protecting Resources v. Yakima County, ___ Wn.App. ___ (11/5/2009) {Gift of public funds] To deal with a flooding problem that threatened the safety of a bridge, the county acquired land and made a trade to allow the relocation of a privately-owned wrecking yard, located on an oft-flooded island that served as a foundation for a bridge. A challenge was brought, arguing that the transaction was a gift of public funds or a lending of credit and that the swap violated RCW 36.34.330. After losing in superior court, and appeal was brought and the court of appeals affirmed. There was no gifting involved since flood prevention and amelioration is a fundamental purpose of government, and the relocation of the business served that purpose. The transaction did not violate the land swap statute because the statute permits counties to exchange surplus real property for other real property that would be useful to the county; however, that was not the situation in this case since the county needed the property in order to facilitate moving one of the wrecking yards; it was not surplus land. The property was purchased solely for the relocation project.
Kitsap County Deputy Sheriff's Guild v. Kitsap County, ___ Wn.2d___ (10/29/2009) [Public employment/arbitration] A deputy sheriff was terminated for various violations, including untruthfulness. The determination was considered by an arbitrator, who found that violations had occurred, but that termination was not an appropriate penalty. The court of appeals overturned the decision, however, finding that the decision violated public policy. The supreme court reversed the court of appeals decision, holding that an arbitrator's decision could be overturned by the courts if the decision violated public policy and the public policy is explicit, well defined, and dominant. The arbitrator's decision did not violate such a policy.
Mechling v. City of Monroe, ___ Wn.App. ___ (10/26/2009) [Public records]Mechling sought, among other things, e-mail messages to and from councilmembers, received on personal or business computers; she also requested they be supplied in electronic format. While the city supplied some of the requested documents, it redacted e-mail addresses and did not provide the information in electronic format. Mechling sued and, after the superior court found that the city had complied, appealed to the court of appeals. The court held that the e-mail addresses were not exempt and deferred on the issue of providing records in electronic format, leaving whether it was reasonable and feasible to supply the records in that form to the superior court to decide. The court further advised that a document prepared for a purpose other than or in addition to obtaining legal advice and intended to be seen by persons other than the attorney, does not become subject to the attorney-client privilege merely by being shown to the attorney. And the court held that for those e-mail records which the city withheld, it must provide the name of the author and the recipient of the e-mails.
City of Federal Way v. Koenig, ___ Wn. 2d ___ (10/15/2009) [Public records] Koenig requested judicial records from the Federal Way court; his requests were denied. On appeals the Supreme Court, relying on its decision, Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986), the Court affirmed its conclusion that the Public Records Act does not apply to the judiciary and the legislature has acquiesced to that decision by not modifying the Act.
Post v. City of Tacoma, ___ Wn. 2d ___ (10/15/2009) [Building Code enforcement/LUPA] Post owned a number of properties within the city, some of which were in violation of building codes and standards. Notices were given to correct the deficiencies or to request a hearing. Subsequent notices did not provide for a hearing. Automatic daily penalties and additional infractions were possible if corrections were not made or agreed to schedules were not kept. Assessments in the hundreds of thousands of dollars were made, and Post appealed. Superior court found the appeals untimely under LUPA and sustained the penalties that had been assessed. On appeal, the Supreme Court reversed, concluding that LUPA did not bar the appeal, as enforcement action for these civil violations was required to be considered in municipal court and because the remedy sought was for money damages or compensation. The sections of the enforcement code purporting to authorize the unlimited and unreviewable issuance and enforcement of subsequent civil infractions and penalties without any system of procedural safeguards are unconstitutional on their face and as applied.
Building Industry Association of Washington v. McCarthy, ___ Wn. App. ___ (10/13/2009) [Public records request] The BIAW sought records from Pierce County, including some e-mails that had been destroyed consistent with state retention guidelines. The county provided all of the records it could find, but the BIAW insisted that, since there were two omitted e-mails, undoubtedly there were others. The BIAW provided no evidence at a summary judgment motion, asked for no discovery, and did not seek a continuance. The court, after reviewing affidavits explaining the county's search for the requested records and its retention practices, granted a summary judgment in favor of the county. The BIAW appealed; the superior court's judgment was affirmed.
Stientjes Family Trust v. Via-fourre, ___ Wn.App. ___ (10/12/2009) [LUPA] Decision on issuance of building permit was appealed to the county board of county commissioners. The commissioners reversed an earlier hearing examiner decision and returned the issue to the hearing examiner for additional review (did project comply with critical areas ordinance?). A local jurisdiction's decision concerning a building permit application is final for purposes of LUPA if a party "receive[s] the relief it had requested" and no additional issues remain. Because additional issues in the controversy remained to be decided and appellant might yet prevail, the commissioner's decision was not final. Accordingly, the superior court lacked authority to consider LUPA petition.
Abbey Road Group v. City of Bonney Lake, ___ Wn. 2d ___ (10/8/2009) [Vesting] Abbey Road sought to build a multifamily condominium development. Its representatives met with the city and then later submitted a site plan application. On the day that the site plan application was filed, the city changed the zoning for the area, and the proposed use was no longer available. The city denied the site plan. Following appeals to a hearing examiner, superior court and court of appeals, the supreme court was asked to determine whether the filing of a site plan vested the proposal under the regulations then in place (which would have allowed the development). A divided court, in a plurality decision involving a lead opinion and a concurrence, concluded that vesting occurs when a complete building permit application is made, as provided for both by case law and statute, not at an earlier stage. The majority concluded that the City did not require an approved site plan before it would consider a building permit application.
City of Seattle v. St. John, 166 Wn. 2d 941 (9/10/2009) [DUI and implied consent] The defendant crashed a motorcycle. After investigation, the police determined that St. John may have been under the influence of alcohol at the time of the accident. The police sought a breath test, but St. John refused. Thereafter a warrant was obtained allowing for the taking of a blood sample to test for alcohol. May a driver be required to take a blood test ordered by a warrant after he or she has denied a request to have a breath test taken? Yes. The implied consent statute explicitly allows a police officer to obtain a blood alcohol test pursuant to a warrant, even after a driver refuses a voluntary blood alcohol test. Neither due process nor equitable estoppel requires police officers to inform DUI suspects of the possibility of obtaining a warrant to collect evidence.
Kapo v. Central Puget Sound Growth Management Hearings Board, ___ Wn. App. ___ (9/9/2009) [Interplay of Shoreline Management and Growth Management Acts] Kitsap County, in updating its critical areas ordinance, imposed a 35-foot buffer around the county's marine shorelines. Appeals were made to the growth management hearings board challenging the buffer as either being inadequate or excessive. The hearings board, applying growth management, upheld the buffer but remanded with direction to increase the buffer's size. An appeals was brought in superior court, which upheld the hearings board's decision, and a further appeal was made to the court of appeals. The court of appeals reversed and remanded for consideration of the buffer under the Shoreline Management Act. Which act should control? The Growth Management Act or the Shoreline Management Act? The court, in reaching its decision, followed Futurewise v. Western Washington Growth Management Hearings Board, 164 Wn.2d 242 (2008), a plurality opinion. When following a plurality decision, the holding of the court is the position of the justice(s) concurring on the narrowest grounds. In this instance, the court held that only one plan-- the SMA plan -- can be in effect at one time; accordingly, the Kitsap County critical area ordinance was reversed and the matter remanded to the Board for further remand to the County to plan for the shoreland regions under the Shoreline Management Act.
Vonage America v. City of Seattle, ___Wn. App. ___ (9/8/2009) [Taxation] Vonage provides telephone service, both intrastate and interstate, by use of VoIP, Voice over Internet Protocol, changing analog messages to digital and then sending the messages over the internet. Seattle taxed a portion of Vonage's income, and Vonage appealed. The court concluded that services like Vonage's are not interstate as a matter f law regardless of the actual service usage; Vonage is subject to the City's telephone utility tax but the assessment must be based on the intrastate component of Vonage's service. Although Vonage's VoIP service is delivered through the Internet and has some similarities to e-mail, it is not an Internet service provider, exempt from tax under RCW 35.21.717. And, as to a requirement for nexus, while there was no evidence that Vonage owned or leased property in Seattle or that it had employees in Seattle during the audit, it obtained a sufficient physical presence in the city by purchasing the right to use telephone lines in Seattle through its affiliate, Vonage Networks, Inc. As to the calculation of the tax, the court concluded that the City must produce substantial evidence that its tax assessment is based on the intrastate component of Vonage's VoIP service, i.e., an estimate of calls initiated and terminated within Washington state. Once that burden is met, it falls on Vonage to demonstrate that the estimate is inaccurate and to establish a more accurate estimate.
City of Spokane v. Rothwell, 166 Wn.2d 872 (9/3/2009) [Jurisdiction of district court judge serving as municipal court judge] Spokane, by agreement with the county, used district court judges as its municipal court judges. The defendant challenged a conviction of the municipal court, arguing that the trial judge was not elected solely by city voters. The conviction was affirmed on appeal and an appeals was taken to the supreme court. The Supreme Court reversed, concluding that the municipal court judge had de jure jurisdiction. The judges were "elected" in the county and, by agreement with the city, rotated as municipal court judges. The judge's appointment as a municipal judge was a direct result of her election and therefore was not inconsistent with former RCW 3.46.063, which required municipal court positions to be filled by election. The election was for a district court office, not full time municipal judge, and therefore the election did not have to be only by ity voters under former RCW 3.46.070.
In re Forfeiture of 1970 Chevrolet Chevelle, 166 Wn.2d 834 (9/30/2009) [Forfeiture of vehicle associated with trade of illegal drugs] Pursuant to RCW 69.50.505, relating to drug trafficking, vehicles can be forfeited if they, among other things, were used in the drug trafficking. Forfeiture is not available if the vehicle owner was an "innocent owner." Here the hearing examiner concluded that the owners should have known of the illicit activities for which their cars were used and were, therefore, not considered "innocent owners" under RCW 69.50.505(1)(d)(ii). On appeal the court reversed, concluding that the term "knowledge" under the meaning of RCW 69.50.505(1)(d)(ii) is satisfied only by proof of actual knowledge.
Morgan v. City of Federal Way, 166 Wn.2d 747 (8/20/2009) [Public records] A municipal judge was alleged to have created a hostile work environment. The city attorney initiated an investigation and notified the judge, seeking cooperation. Although the judge sought to stop the investigation, it was completed and a report was prepared. A local newspaper requested a copy of the investigative report. The judge sought a court order prohibiting the release of the report. Although the court initially prohibited the release, it later lifted the ban and the judge appealed. The Court concluded that the report was a "public record" (prepared, owned, used, and retained by the city). It was not exempt as work product, as when it was prepared, there was no anticipation of litigation. There was no attorney-client privilege because the attorney who prepared the report did not have an attorney-client relationship with the judge. And there was no personal information exemption (privacy) since the items in the report were not "highly offensive" and the judge failed to demonstrate how disclosure would not be in the public interest.
City of Seattle v. Wilson, 151 Wn.App. 624 (8/17/2009) [Traffic/criminal] The City enacted an ordinance that criminalized committing a traffic infraction that results in death or great bodily harm without any requirement that the driver have a culpable mental state. The defendant Wilson failed to yield the right-of-way (which could have been charged as a traffic infraction), resulting in the death of a bicyclist. Upon appeal, the court held that the ordinance violated a state statute [RCW 46.63.020], that prohibits classifying a traffic infraction as a criminal offense; the ordinance was invalid and cannot be enforced.
Grays Harbor Energy v. Grays Harbor County, 151 Wn. App. 550 (8/11/2009) [Property valuation for tax purposes] Is power generating equipment affixed to land in a non-operating power plant taxed as real property or as personal property? The court concluded that by statute the property should be taxes as personal property. RCW 84.12.280 provides in part that "all of the operating property other than lands and buildings of electric light and power companies . . . shall be assessed and taxed as personal property." And RCW 84.12.200(12) provides in part that "operating property" means and includes "all property, real and personal . . . used by the company in the conduct of its operations." These provisions clearly exempt the generators from taxation as real property. The statutes are not only applicable to assessments by the state department of revenue. And the statutes are not unconstitutional; the legislature may adopt statutes that are inconsistent with the common law, treating these assets as personal property, even though they would be treated as real property under common law.
City of Woodinville v. Northshore United Church of Christ, 166 Wn.2d.633, (7/16/2009) [Land use/constitutional law] Does the city's refusal to permit a church to host a homeless tent city violate its state constitutional right to religious freedom and violate the federal Religious Land Use and Institutionalized Persons Act (42 U.S.C. § 2000cc et seq.)? The court held that the City violated the Church's constitutional rights under article I, section 11 when it refused to process the Church's permit application based on a total moratorium on temporary use permits in the area. Rather than seeking to impose reasonable conditions on the Church's project to protect the safety and peace of the neighborhood, the City categorically prevented the Church from exercising what the City conceded was a religious practice. Having reached its conclusion on state constitutional grounds, the court did not consider the federal Religious Land Use and Institutionalized Persons Act issue. Also, the court found that the church was not bound by a 2004 agreement requiring the church to obtain a permit before establishing a new tent city location since the city breached the earlier agreement by refusing to consider a permit application due to the moratorium it had imposed.
Koenig v. Pierce County, 151 Wn. App. 221, (7/13/2009) [Public disclosure] Following his arrest for a matter that was never prosecuted, the defendant Koenig sought from the county sheriff and county prosecutor all of the materials relating to the decision to not prosecute. While some materials were provided by both county departments, the prosecutor's office withheld some records as being work product. Koenig sued. Following a decision favorable to the county, Koenig appealed, and the court upheld the superior court's decision. The court upheld the county's use of the plurality decision in Limstrom v. Ladenburg, 136 Wn.2d 595, 604, 963 P.2d 869 (1998), relating to the withholding of work product and the application of CR 26. The court also found that there was no responsibility for the county to coordinate the responses from the prosecutor and the sheriff. Also the court found that the county had adequately described the records it had withheld.
McAllister v. Bellevue Fireman's Pension Board, 166 Wn. 2d. 623 (7/9/2009) [Retirement benefits] Firefighters who made retirement contributions under the Firefighters' Relief and Pensions-1955 Act retired after firefighter retirement benefits came from the LEOFF retirement plan. The plaintiffs sought to have their retirement benefits calculated under the definitions used under LEOFF. The Court upheld the city's decision to calculate excess payment according to the basic salary under the 1955 Act rather than under LEOFF.
City of Bellevue v. Lee, 166 Wn. 2d. 581, (7/9/2009) [Suspension of driver's license] If a person's driver's license is suspended for failure to appear, respond, failure to pay fine, or otherwise comply with a traffic citation, his or her driver's license, after a 45-day notice period, can be suspended. The driver, however, may request an administrative review. The review involves the department of licenses (DOL) reviewing various documents submitted to it relating to the proposed suspension. There is no in-person or telephone hearing. Lee argued that the review process failed, as it lacked a hearing, failed to provide due process. The court disagreed and concluded that DOL's procedures provide both notice and a meaningful opportunity to be heard. The license suspension was upheld.
Beak, Cummings. Rasmussen and Wingard v. City of Seattle, ___ Wn. App. ___ (6/22/2009) [Public records] Plaintiffs requested "documentation supporting [the city's] asserted inability to implement our suggestions or any of the alternatives to their proposal." When the orally requested documentation was not provided, plaintiffs filed suit under the public records act. The court concluded that the plaintiffs had asked for documentation but were not sufficiently precise to constitute a request for an identified record. The problem was with the ambiguity of the request, not the form of the request.
State v. Immelt, ___ Wn.App. ___ (6/8/2009) [Nuisance/noise] Immelt, mad at some of her neighbors, honked her car horn early in the morning and then later, after having been advised to not do so except for public safety purposes. Having honked her car horn after being warned by a sheriff deputy, Ms. Immelt was convicted. She appealed, arguing that the nuisance ordinance, which prohibited unnecessary honking, violated the constitution and her right of free speach. The court disagreed, finding that the ordinance was presumed constitutional and, in any case, hthe honking of a horn is not per se speech. The ordinance was not vague, and no speach was involved.
Snohomish Regional Drug Task Force, Res. v. Yatin, 150 Wn.App. 387 (6/1/09) [Drug forfeiture] Notice of appearance served on counsel within 90 days of seizure of the properties by recording of the lis pendenses is sufficient written notices under RCW 69.50.505(5), the drug seizure and forfeiture statute. The petitioners were entitled to a hearing to address their rights as others with claimed interests in the property that had been seized.
Spokane Airports v. RMA, Inc., 149 Wn. App. 930 (4/28/2009) [Airports/condemnation] In this instance, the Spokane Airport is jointly run by the city of Spokane and Spokane County through a joint agreement allowing operation through a separate board. Due to FAA requirements, it became necessary to condemn certain buildings (including some used by RMA). The city and county adopted resolutions to condemn RMA's leases, and the joint operating board sued to condemn the leases. Although there were other issues, the court held that the condemnation suit was improperly brought by the joint board; RCW 18.08.200(9) requires such a suit be brought jointly by the municipalities (the fact that the city and county had adopted resolutions was not enough; the suit needed to be brought by both as well).
Brunson v. Pierce County Auditor, 149 Wn. App 855 (4/21/2009) [Revocation of license] Ms. Brunson and two other women performed lap dances at an adult entertainment business, contrary to county regulations. In view of this violation, the county auditor suspended the dancers' erotic dancer license for one year; after the suspension was affirmed by the hearing examiner, the dancers appealed. The county code permitted license suspension for "a specified period of not more than one
year." The auditor expressed the opinion that any violation of the code was serious and warranted a one-year suspension; she could not describe a situation that would warrant a shorter suspension period. The court held that the auditor abused her discretion by failing to exercise the discretion that county code provided to her. The only cure for the abuse of discretion is a remand and a new hearing with instructions that the auditor exercise the allocated discretion. The court further held that use of a "preponderance of the evidence" standard for determining whether there should be a suspension is adequate for this, an occupational license.
Spice and Plexus v. Pierce County, 149 Wn. App. 461 (3/31/2009) [LUPA] LUPA appeal filed and later voluntarily withdrawn. County moved to have LUPA appeal dismissed with prejudice; it was and thirteen months later applellants sought to vacate the dismissal order. Due to passage of time (more than 21 days) and fact that appeal was voluntarily withdrawn, issue is moot and court does not have jurisdiction to vacate dismissal order. Appellant would not be able to refile, even if dismissal vacated, as more than 21 days has elapsed.
State v. Kirwin, ___ Wn.2d ___ (3/26/2009) [Criminal law] A person was arrested for littering and, subsequent to his arrest, a search was made of the automobile in which he was riding; drugs were found and the defendant was charged with a drug offense. The defendant argued that the city ordinance making littering a crime (instead of an infraction, as it is under state law) was preempted by state law and thus the search following arrest was improper. The Court disagreed. Both the state law and the city ordinance addressed the same act and thus was not in conflict with state law; additionally, the staate law did not preempt local regulation.
North Pacific Design v. City of Gig Harbor, ___ Wn. App. ___ (3/2/2009) [Land use/zoning] A developer applied for a preliminary plat and planned residential development (PRD). Although the PRD regulations provided a means to increase density in a PRD, the developer chose to increase density by seeking a conditional use permit for the underlying zone. A conditional use permit (CUP) would allow a possible density increase from 8 dwelling units per acre to 12 dwelling units per acre. The city’s hearing examiner approved the plat, the CUP (for 11.75 dwelling units), and the PRD. The city appealed the hearing examiner decision, arguing the PRD regulations described the exclusive means to increase density in a PRD, and because a PRD rezoned the property, the developer was required to either follow the development standards of the underlying zone or those standards in the PRD regulations. The court disagreed, concluding that there was no rezone if the density allowed by the underlying zoning "expressly permitted" the density sought. The court found that the regulations relating to density in the PRD and underlying zone could be harmonized. The City argued that the PRD prohibited any increase in density in this particular case because it was inconsistent with the underlying comprehensive plan designation for the property, but the court found the increase in density to be allowed by the zoning code.
Samson v. City of Bainbridge Island, 149 Wn. App.33 (2/24/2009) [Shorelines Management] The city amended its shorelines master program (SMP) to prohibit construction of new single-use private docks and to limit dock construction in Blakely Harbor to two joint-use docks, one community dock, floats, and buoys. Samson appealed the city's actions, arguing, among other things, that the city's amendments were not consistent with state guidelines, the city's SMP and comprehensive plan, and violated the public trust doctrine. The hearings board ruled against Samaon and, on appeal, the court of appeals affirmed. The state guidelines that Samson argues are inconsistent with the city's amendment were not yet in effect when Samson brought the appeal. The city's amendments protected Blakely Harbor, a harbor that is less developed than other shorelines of the city and the city amendments did not prohibit all forms of access to the harbor. In addition, the amendments protected the harbor, which is consistent with the public trust doctrine,
Parmelee v. Clark, ___ Wn. App. ___ (2/23/2009) [Public records] Prison inmate made public records request to Department of Corrections, but not to person designated to accept requests. Because the two record requests were not submitted to the designated public disclosure coordinator, the agency may not be penalized for failing to respond to them in a timely fashion.
Rental Housing Association v. City of Des Moines, 165 Wn. 2d. 525 (1/22/2009) [Public records] When a requesting
party is dissatisfied with an agency's response to a records request, it may bring an action under the PRA but must do so "within one year of the agency's claim of exemption or the last production of a record on a partial or installment basis." RCW 42.56.550(6). When does that one-year period begin? Rejecting the argument that that a "claim of exemption" starts the clock, the court finds that the period begins when a "privilege log," is issued. To satisfy the privilege log requirement, it appears that a response denying a record request must (1) adequately describe individually the withheld records by stating the type of record withheld, date, number of pages, and author/recipient or (2) explain which individual exemption applied to which individual record rather than generally asserting the controversy and deliberative process exemptions as to all withheld
documents.
Hale v. Wellpinit School District, ___ Wn. 2d. ___ (1/15/2009) [Personnel – Disability ] A challenge was brought to determine that a legislative amendment defining the term “disability” could be made retroactively or whether such retroactive application violated the separation of powers doctrine. (The legislative amendment applied to cases arising before the supreme court adopted in a decision the federal definition for what constitutes a “disability.”) The Court held that the retroactive application did not violate the Separation of Powers Doctrine.
Yousoufian v. Office of Ron Sims, 165 Wn. 2d. 429 (1/15/2009) [Public records] This decision provides the latest chapter in a public records case that has spanned over 11 years. This particular decision involves the calculation of the penalty to assess when a court determines that a records request response has been improperly delayed or denied. The trial court, after reviewing the record, concluded that the penalty should be $15 per day (set at the lower end of the statutory scale of $5 to $100 per day). A majority of the court, in a divided decision with five opinions, concluded that the trial court had abused its discretion in setting the penalty at $15 (one of the opinions suggested the penalty would be more appropriately set near $100). In sending the case back to the trial court, the majority provided a list of factors to consider in deciding the amount of penalty. Mitigating factors are: the lack of clarity of the request; an agency's prompt response or legitimate follow-up inquiry for clarification; good faith, honest, timely, and strict compliance with all the procedural requirements and exceptions; proper training and supervision of personnel; reasonableness of any explanation for noncompliance; helpfulness of the agency to the requestor and the existence of systems to track and retrieve public records. Aggravating factors that increase a penalty are a delayed response, especially in circumstances making time of the essence; lack of strict compliance with all th procedural requirements and exceptions; lack of proper training and supervision of personnel and response; unreasonableness of any explanation for noncompliance negligent, reckless, wanton, bad faith, or intentional noncompliance with the Public Records Act; dishonesty; potential for public harm, including economic loss or loss of governmental accountability11; (8) personal economic loss; and a penalty amount necessary to deter future misconduct considering the size of the agency and the facts of the case.
Spokane County v. City of Spokane, 148 Wn.App. 120 6/2009) [GMA] The Growth Management Hearings Board does not have statutory authority to require a county to establish a "joint planning area" with the City of Spokane within an established urban growth area.
2008
City of Tukwila v. Garrett, ___ Wn. 2d ___ (11/26/2008) [Criminal law/jury selection] Tukwila used the King County court system for selection of a jury pool; in this instance, jurors were selected from three zip codes that included an area roughly equivalent to the city's boundaries. The defendant objected. The Court held that a valid oral agreement authorized King County Superior Court to provide jury selection services for Tukwila Municipal Court, and that selecting the jury pool from the area encompassed by the three zip codes that applied to the City of Tukwila substantially complied with RCW 2.36.050.
City of Union Gap v. Washington State Department of Ecology, 148 Wn. App. 519 (11/13/2008) [Water rights] A private company bought property, including associated water rights. The company intended to sell the water rights to the city, and it entered into negotiations with the city for that purpose. However, while the company's intent was clear, and the city expended funds in anticipation of the purchase, the water rights went unused for over five years. The court concluded that the water rights had been relinquished. The owner of a water right relinquishes that right to the state if the water right is not used beneficially for five years. But the owner does not relinquish that right, despite nonuse, if it is claimed for some "determined future development" or for "municipal water supply purposes." Here, a developer bought water rights intending to sell them to a city. The court concluded that the sale did not take place within the required five-year period before the developer relinquished the water rights. Nor did the developer satisfy the requirements of either the "determined future development" or the "municipal water supply purposes" exceptions to the general rule of relinquishment after five years of nonuse of the water rights.
Broyles v. Thurston County, 147 Wn. App. 409 (11/12/2008) [Personnel] Three female deputy prosecuting attorneys brought suit against the county, alleging hostile work environment and retaliation. The plaintiffs prevailed and the county appealed. There were numerous issues on appeal; however, one argument made by the county was that the county could not be held liable for the actions of an independently elected official, the county prosecuting attorney. The court disagreed. A county is "an artificial being, invisible, intangible, and existing only in contemplation of law," which by necessity "must act through its officers, directors, or other agents." The County is liable for its prosecuting attorney's discriminatory employment acts. Especially in the context of employment discrimination, either the state or local government must be responsible for the actions of the officers and agents that exercise governmental powers and act on the government's behalf. While the county should not be held liable for actions a prosecutor takes while representing the State, such as in filing or trying criminal cases, it is liable when the prosecuting attorney is acting for the county when performing administrative tasks, such as in making
personnel decisions.
Isla Verde International Holdings v. City of Camas, 147 Wn. App. 454 (11/12/2008) [Land use/takings] As a condition of development, the city required Isla Verde to dedicate 30 percent of its property to open space. Isla Verde appealed and eventually the Supreme Court concluded that, without a demonstration that the set aside related to the proposed development, the open space requirement represented an unlawful violation of RCW 82.02.020. Isla Verde filed a LUPA action against the City for damages under RCW 64.40.020, asserting that the city knew or reasonably should have known that its imposition of a mandatory 30 percent open-space set-aside was "unlawful" within the meaning of RCW 64.40.020(1), thus entitling it to damages, costs, and attorney fees as a matter of law. The superior court granted a summary judgment in Isla Verde's favor. On appeal, the court held that there were significant issues of material fact that required resolution by trial. The Supreme Court's decision in Isla Verde was the first time set asides were found in violation of the law; even afterward it was unclear whether similar requirements were violations of the law. Accordingly, there were issues of fact that needed to be resolved in trial, not as a matter of law.
Parrell-Sisters MHC v. Spokane County, 147 Wn. App. 356 (11/6/2008) [Utility charges] The plaintiff operates a mobile home park. The county charged the mobile home park a capital facilities rate fee for the presumed impact the septic system used by the mobile home park had on an aquifer. Parrell-Sisters sued, but the trial court ruled in the County's favor, finding that the charge was a regulatory fee. On appeal, the decision was reversed. The court applied RCW 35.67.370, which it found to be unambiguous, and which prohibits local governments "from requiring existing mobile home parks to pay a sewer service availability charge, standby charge, consumption charge, or any other similar types of charges associated with available but unused sewer service." The County The County asserted that the fee charged the mobile home park for the impact of its septic system on the aquifer, not for unused sewer service. The Court disagreed, finding that the charge violated the statute; the CFR fell within the broad language of the statute prohibiting charges associated with available but unused sewer service.
Fisk v. City of Kirkland, 164 Wn. 2d 891 (10/23/2008) [Tort liability] The Fisks were driving an RV through the city when their vehicle caught on fire. Responding firefighters were faced with a fire hydrant that lacked sufficient pressure for firefighting purposes. By the time a second hydrant was opened, the Fisk vehicle had suffered significant damage. The Fisks sued, citing negligence. The trial court found no city duty and dismissed the claim; an appeal followed. The court found that the city water department was a "water company" and thus covered by RCW 80.28.010 which, arguably, made the city liable for its failure to provide a sufficient supply of water. However, the court concluded that the statute only covered the furnishing of water "for hire," and not the water provided for fire suppression. And the state has not impliedly created a duty. Thus, the court held that when a municipality provides water for fire suppression as a service to the public, the municipality is not liable in tort for negligence for the increased fire damage because of insufficient water pressure for fire suppression purposes.
Wilson v. City of Seattle, 146 Wn. App. 737 (7/21/2008) [Tort liability] The plaintiff was injured when she fell into a manhole located in the parking strip area of her property (the manhole cover had somehow flipped, opening the manhole). The superior court granted summary judgment in the City's favor and, on appeal, the court affirmed. A municipality has a duty to maintain its parking strips in a reasonably safe condition. What constitutes a reasonably safe condition on a parking strip is not the same as it is for a sidewalk because a sidewalk's purpose is mainly pedestrian use, while a parking strip
frequently contains utility poles and meters, fire hydrants, trees, grass, and other ornamentation. Manholes in parking strips are common, and in this instance the cover was open and obvious. No one had ever complained about the open manhole; the city had no notice. The plaintiff failed to prove that the city had breached any duty.
Lane v. City of Seattle, 164 Wn. 2d 875 (10/16/2008) [Finance/Utilities] Is it legal for the city water utility customers to pay for fire hydrants? No; provision of hydrant service is a governmental function. Following a decision regarding the payment for street lights, Seattle had its general fund pay for hydrant service, paying the cost from proceeds of a utility tax it levied on its water utility. The utility then raised its rates to pay for the tax. As to earlier (pre-tax) charges, Seattle must make refunds to its affected customers, plus interest. Furthermore, other jurisdictions who have secured hydrant service must pay Seattle for that service.
Navlet v. Port of Seattle, ___ Wn. 2d ___ (10/16/2008) [Personnel: vesting of retirement benefits] The port's collective bargaining agreement provided for retirement benefits. After the agreement expired, the port ceased paying into the retirement benefit plan and the plan stopped providing benefits to current and retired employees. The Court held that state law governs the vesting principles for retirement welfare benefits conferred through a collective bargaining agreement with a state employer. Applying the applicable vesting principles to the CBA, we further hold that the Port is obligated to provide retirement welfare benefits for life to Appellants who have satisfied the eligibility requirements to receive such benefits. Retirement welfare benefits conferred in a collective bargaining agreement constitute deferred compensation where the parties negotiate for such benefits as part of the total compensatory package. The compensatory nature of the benefits creates a vested right in the retirees who reached eligibility under the terms of the applicable collective bargaining agreement. Once vested, the right cannot be taken away and will survive the expiration of the agreement. The Court further held that the obligation to provided vested retirement welfare benefits does not require the Port to revive and fund the Welfare Trust. While the Port used the Welfare Trust as the tool to deliver its obligation to provide benefits, it may continue to fulfill its obligations through another vehicle that provides a sustainable way of delivering benefits reasonably commensurate with the level of benefits promised in the collective bargaining agreement.
City of Arlington v. Central Puget Sound Growth Management hearings Board, 164 Wn. 2d 768 (10/9/2008) [GMA] The Supreme Court affirmed an earlier Court of Appeals decision, and adopted the decision as its own. The court upheld Snohomish County's amendment of its comprehensive plan, concluding that the area in question was properly redesignated from agricultural to urban commercial.
Danny v. Laidlaw Transit Services, ___ Wn. 2d ___ (10/3/2008) [Termination of employment and public policy] An employee suffered disciplinary action and was later terminated after she took time off work to deal with domestic violence issues facing her family. The plaintiff sued in federal district court, and that court asked the state supreme court the following (reformulated) question: Has the State of Washington established a clear mandate of public policy of protecting domestic violence survivors and their families and holding their abusers accountable? The supreme court answered in the affirmative, stating: "Washington State has unequivocally established, through legislative, judicial, constitutional, and executive expressions, a clear mandate of public policy of protecting domestic violence survivors and their families and holding abusers accountable."
Brutsche v. City of Kent, ___ Wn. 2d ___, (10/2/2008) [Inverse condemnation] While searching for drugs pursuant to a search warrant, police broke doors and door jambs. Is property damage inflicted during the execution of a search warrant compensable? Liability in trespass may arise if, by intentionally doing an act that a reasonable person would not regard as necessary to execute the warrant, the police damage property, or if the warrant is executed in a negligent manner, resulting in property damaged. Although a trespass action is a permissible cause of action, summary judgment for the city's was properly granted because, as a matter of law, on the evidence submitted; the officers did not exceed the scope of their privilege to be on the property to execute the search warrant. The Court also concluded that the plaintiff, Brutsche, was not entitled to assert a takings claim.
American Legion Post No. 149 v. Department of Health, ___ Wn. 2d ___ (9/11/2008) [Health regulation/No Smoking] Do "no smoking" regulations apply to private facilities that are places of employment? A divided supreme court (5 to 4) has found that they do and that such regulations are not unconstitutional. If a facility is a "place of employment," regardless of whether it is a "public place," smoking is prohibited Thus, the exception for private facilities is an exception to the definition of a "public place" and does not apply to the prohibition against smoking in "any place of employment." The court also concluded that the American Legion lacks representational standing and is precluded from asserting that the Act violates its members' liberty interests without due process of law. Does the regulation violate American Legion's right to privacy? Because there is not a fundamental right to smoke, there is no privacy interest in smoking in a private facility. Nor does the regulation violate the right to association. Since the regulations are rationally related to protecting public health, they do not violate due process or article I, section 7 of the state constitution. Smoking inside a place of employment is not a fundamental right of citizenship and, therefore, is not a privilege. Because there is no privilege involved, the court held there is no violation of article I, section 12. The regulations were sufficiently definite to overcome a void-for-vagueness challenge.
First Pioneer Trading Co. v. Pierce County, 146 Wn. App. 606 (9/3/2008) [Zoning] The plaintiff sought to continue a steel fabrication business on property it owned. The county denied the request, indicating that the continued use was not allowed under the zoning code and it was not a lawful preexisting use. The hearing examiner ruled against First Pioneer, as did the superior court, and on appeal the court affirmed. First Pioneer failed to demonstrate that it had used the property for industrial uses at the time the county's zoning went into effect, plus First Pioneer failed to obtain a conditional use permit at the time, which would have allowed a lawful use to continue. To prevail in keeping a nonconforming use, an applicant an applicant has initial burden to prove that (1) the use existed before the county enacted the zoning ordinance; (2) the use was lawful at the time; and (3) the applicant did not abandon or discontinue the use for over a year. First Pioneer failed to do so.
Lakeland v. City of Bonney Lake, 147 Wn. App. 64 (9/3/2008) [Development charges] A developer challenged the city's water system development charge. On appeal, the court voided the city ordinances, concluding that the city adopted the ordinances based on outdated and incorrect numbers.. The court instructed that the City had the burden of satisfying RCW 35.92.025 by providing reasonable charges on equitable shares of the cost of the system and that its decision could not be arbitrary. While an expert opinion is permissible in support of the development charge regarding information and data that was before the City when it adopted the ordinance, new methodologies (that is, methodologies prepared after the ordinance has been adopted) are not relevant to the court's consideration whether the rates were reasonable when adopted.
In re Recall of Davis, 164 Wn. 2d 361, (8/14/2008) [Recall of officer] A port commissioner signed an agreement providing for severance pay for the port's departing chief executive officer. A citizen sought to recall the commissioner for taking this action outside a public meeting. The Court inferred from the record that the commissioner understood her duties as a port commissioner and the legal necessity of voting in public session before potentially obligating the port in any monetary agreement, and, for purposes of recall, intentionally acted outside the scope of these duties by signing an agreement. The Court further found that the recall petition was legally sufficient in charging the commissioner with an act of malfeasance by signing the agreement which had the potential effect of obligating the Port of Seattle to pay the outgoing employee. Additionally, the Court found that the payment was not voted on or approved by the port at a regularly scheduled public hearing and thus concluded charge one of the ballot synopsis is legally sufficient.
Thurston County v. Western Washington Growth Management Hearings Board, 164 Wn. 2d 329, (8/14/2008) [GMA]. A party may challenge a county's failure to revise a comprehensive plan only with respect to those provisions that are directly affected by new or recently amended GMA provisions, meaning those provisions related to mandatory elements of a comprehensive plan that have been adopted or substantively amended since the previous comprehensive plan was adopted or updated, following a seven year update. If a county fails to revise its comprehensive plan to comply with new or amended GMA requirements, a party must be able to challenge the comprehensive plan or GMA amendments. A party may challenge a county's failure to revise its UGA designations during a 10 year update only if the OFM population projection for the county changed. A county's UGA designation cannot exceed the amount of land necessary to accommodate the urban growth projected by OFM, plus a reasonable land market supply factor. "[A] market factor represents the estimated percentage of net developable acres contained within a UGA that, due to idiosyncratic market forces, is likely to remain undeveloped over the course of the twenty-year planning cycle." A Board should not reject urban densities based on a bright-line rule for maximum rural densities, but must consider local circumstances and whether these densities are not characterized by urban growth and preserve rural character. The GMA does not dictate a specific manner of achieving a variety of rural densities.
Futurewise v. W. Wash. Growth Mgmt. Hearings Bd. 164 Wn. 2d 242 (7/31/2008) [GMA and Shorelines Management Act] Does the Growth Management Act apply to critical areas located in a city's shoreline master plan until the city updates its master plan under the Shorelines Management Act? No. The state legislature made it clear that critical areas within the jurisdiction of the Shorelines Management Act (SMA) shall be governed only by the SMA.
Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn. 2d 199, (7/31/2008) [Public records disclosure] The court, on a divided vote held that the identities of public school teachers who are subjects of unsubstantiated allegations of sexual misconduct are exempt from disclosure under public disclosure act. Also, letters of direction must be released to the public, but where a letter simply seeks to guide a teacher's future conduct, does not identify an incident of substantiated misconduct, and the teacher is not subject to any form of restriction or discipline, the name of the teacher and other identifying information must be redacted.
West v. Port of Olympia, ___ Wn. App. ___ (7/21/2008) [Public disclosure] The port was requested to furnish a copy of a lease it had entered into with Weyerhaeuser. The request was denied for several reasons, including the “deliberative process” exemption. However, the lease had been approved, so that exemption no longer applied. The records could not be denied just because the port would enter into other leases and the lease in question could affect those subsequent negotiations. Since the lease had been approved, the exemption no longer applied.
O’Neill v. City of Shoreline, ___ Wn. App. ___ (7/21/2008) [Public disclosure] A councilmember/deputy mayor referenced an e-mail she had received during a council meeting. O’Neill requested a copy of the e-mail. However, the electronic record of the e-mail was altered through the removal of the heading (To/From). O’Neill sued to obtain the e-mail. The court concluded that the record was a public record, even though it had been received by the councilmember on a private computer. Although O’Neill had been furnished a paper copy of the e-mail, she had requested the metadata. The court found that the metadata fell within the definition of a public record.
Group Health Cooperative v. City of Seattle, 146 Wn. App. 80 (7/21/2008) [Business and occupation taxes] Are premium payments made by customers to the Cooperative (a HMO), as well as payments made by the federal government from the Federal Employee Health Benefits Fund (FEHBA) subject to the city’s business and occupation tax? RCW 48.14.0201(7), precludes Washington municipalities from assessing local taxes on health care premium payments made to HMOs. The City had contended that its method of calculating the "taxable portion" of Group Health's premium revenue was not, in fact, a tax on health care premiums because some portion of Group Health's premium revenue is necessarily spent on the direct provision of health care services by Group Health employees. The court found that the legislature did not intend to preempt the ability of municipalities to impose excise or privilege taxes on "health care services directly delivered" by HMOs that are not covered by the prepaid benefit plans purchased by HMO customers. Further, the FEHBA provides that neither states nor municipalities may impose any tax on FEHBF payments.
Swineheart v. City of Spokane, ___ Wn. App. ___ (7/15/2008) [Recreational immunity statute] The plaintiff was injured when he slid down a large slide into a sawdust pit that did not have adequate sawdust. He sued for his injuries. The city argued that it was immune from liability under the recreational immunity statute. The plaintiff argued that the lack of fill material was a latent condition, which took the injury outside the immunity statute protection. On appeal the court held that the condition of the playground fill was obvious to park visitors. The City was entitled to the benefit of immunity under the recreational use statute.
City of Spokane Valley v. Spokane County, 145 Wn. App. 825 (7/15/2008) [Disposition of county roads upon annexation of area into city] Spokane County purchased railroad right-of-way, dedicated the land to highway purposes, and developed a road on a portion of the right-of-way. This area became part of the City of Spokane Valley upon the incorporation of that city. By statute, county roads revert to a city upon incorporation. Does a city receive only the improved roadway, or the entire right-of-way? The court held that the unimproved right-of-way does not meet the definition of "county road" and, thus, did not revert to the City under RCW 35.02.180. Additionally, it held that the right-of-way fell within the exemption under RCW 36.87.090 for properties purchased by deed.
City of Port Angeles v. Our-Water Our-Choice, 145 Wn. App. 869 (7/15/2008) [Power of initiative] The city determined that fluoride should be added to its water; a citizens committee objected and filed an initiative to prohibit the addition of fluoride. The trial court rejected the initiative, which decision was appealed. The court of appeals affirmed the trial courts decision. First the court concluded that a preelection review of the initiative was permitted since a local initiative must be consistent with federal and state law. The court held that the issue at hand was administrative in nature and related to a power given to the city council, rather than "to the city," and thus was not subject to an initiative.
Citizens Alliance for Property Rights v. Ron Sims, 145 Wn. App. 649 (7/7/2008) [Does county's limitation on land clearing of rural property violate RCW 82.02.020?] The county adopted clearing and grading limitations that, for rural residential properties, could limit clearing and grading up to 50 percent of the property. Citizens Alliance challenged the limitations, arguing that they amounted to a violation of RCW 82.02.020. While the county prevailed in superior court, the decision was reversed on appeal. The court concluded that the ordinance imposes clearing requirements that are an in kind indirect "tax, fee, or charge" on development, in violation of the statute and that the county failed to prove that the regulation fell within one of the recognized statutory exceptions. There was no persuasive claim that the variation in clearing restrictions provided by the county ordinance proportionally related to proposed development, a necessary element to satisfy the statutory exception. The county ordinance imposes a uniform requirement for cleared area on each lot, unrelated to any evaluation of the demonstrated impact of proposed development.
Vergeson v. Kitsap County, 145 Wn. App. 526 (7/1/2008) [Negligence; failure to remove arrest warrant from files] The plaintiff was arrested for an arrest warrant , one that had been issued to an alias, that had been quashed by a court. She sued, arguing that the county (and a city) had been negligent in its failure to remove the warrant from its record system. On appeal, the court held that the public duty doctrine applied and the plaintiff failed to establish an exception; and, in the alternative, even if the County and City owed an individualized duty to the plaintiff, she failed to show that the County and the City did not exercise ordinary care.
Renner v. City of Marysville, 145 Wn. App. 443 (6/30/2008) [Claim statute] Renner was fired by the city. He sued, arguing wrongful termination. Prior to filing his lawsuit, however, he filed a claim with the city, as required by RCW 4.96.020, on a form supplied by the city. Later the city challenged Renner's claim, arguing that he had failed to list his place of residence for the six months prior to filing his claim, and Renner failed to state the amount of damages sought. The court rejected the city's arguments, finding that Renner had filled out the form he had been supplied by the city, and the city itself, through its personnel records, could determine his place of residency. As to the amount of damages, the court determined that the city would be able to generally determine Renner's damages, based upon its personnel records.
Coffey v. City of Walla Walla, 145 Wn. App. 435 (6/26/2008) [Appeal of comprehensive plan amendment] The city amended its comprehensive plan but did not change its zoning for a newly annexed area. The neighbors appealed the comprehensive plan amendment to superior court. On appeal the Court held that the superior court lacked jurisdiction to consider the appeal; the appeal should have been made to the Growth management Hearings Board.
Comcast v. City of Seattle, 164 Wn. 2d 35, (6/26/2008) [Taxation of cable services] Comcast provides high-speed Internet service within the city. The city maintained that it could tax such service as a telephone utility, imposing a six percent tax. Comcast disagreed, and the Court held that under the plain language of RCW 35.21.717 (a city or town may not impose any new taxes or fees specific to internet service providers) the city could not impose the telephone utility tax rate. Network telephone service does not include cable Internet service. The Court added "a telephone business offering Internet services cannot be charged a telephone tax for those services, but may still be charged a telephone tax for providing telephone services -- just as Comcast may still be charged a cable television tax for providing cable television."
Southwick v. Seattle Police Officers John Does, 145 Wn. App. 292 (6/23/2008) [1983 Action] Southwick was arrested by the Seattle Police. Southwick may have been injured during the time of his arrest, but the extent of his injury (collapsed lung) was not known for several days. Southwick sued the city under a federal 1983 action. The lawsuit was not filed until after the running of three years; prior to the filing of the lawsuit, however, the plaintiff filed a claim against the city and then waited 60 days to file suit. The lawsuit was dismissed as being untimely. Southwick contended that the statute of limitations was tolled during the 60-day claim filing period. On appeal the court affirmed the decision dismissing the lawsuit. There is no requirement that a claim be filed for a 1983 action, followed by a 60-day waiting period. Accordingly, the statute of limitation was not tolled and the suit failed for being filed after the statute of limitations had run.
City of Wenatchee v. Owens, ___ Wn. App. ___ (6/19/2008) [Authentication of an ordinance] The city's gambling tax ordinance, although it was signed by the mayor and city attorney, filed with the county, and codified, was not authenticated by the city clerk. Owens challenged the validity of the ordinance. The court held that the City clerk's duty to attest to or authenticate the Ordinance, pursuant to RCW 35A.12.130, was entirely ministerial. As a result, the clerk's failure to comply with the attestation requirement of RCW 35A.12.130 did not invalidate the Ordinance.
Humbert v. Walla Walla County, 145 Wn. App. 185 (6/19/2008) [Appeal of hearing examiner's decision on conditional use permit] A hearing examiner approved a conditional use permit for the operation of a rock quarry after extending a hearing to receive comments from the state, approving agreed to conditions between the applicant and the state, and limiting the approval to the first phase of the quarry operation. The applicant appealed. The court upheld the examiner's decision, concluding that the examiner could extend the time of the hearing to obtain comment from the state. It denied the appeal as to the conditions imposed, finding that the examiner was merely approving conditions the applicant had agreed to, applying the invited error doctrine; there also were specific impacts that would justify the conditions, regardless of the invited error doctrine. It was not error to approve the first phase of the operation; the examiner could have denied the project altogether. Conditions were only agreed to for the first phase and the applicant did not provide mitigation plans for the future phases.
Milestone Homes v. City of Bonney Lake, 145 Wn. App. 118 (6/17/2008) [Subdivision approvaL] Milestone sought to subdivide property it owned into 25 lots. However, the property it owned did not have sufficient area to make the proposed division and still meet city density requirements. To address this problem, Milestone included lots that were owned by others and had previously been approved as part of another subdivision. The city council did not approve the subdivision, but the superior court ruled in Milestone's favor. After appeal, the court reversed, holding that the city's ordinance was not ambiguous and that the proposed plat did not meet the city's code. Even if the code was ambiguous, the court would have ruled in the city's favor, giving preference to the council's interpretation and its intent to maintain larger lot sizes.
Keep Watson Cutoff Rural v. Kittitas County, 145 Wn. App. 31 (6/5/2008) [LUPA appeal] Keep Watson Cutoff Rural ("KWCR") filed a LUPA appeal against the county's decision to give a developer conditional approval to proceed with a cluster plot. RCW 36.70C.070(4) requires a party filing a LUPA petition attach a copy of the decision being appealed to the petition.; KWCR failed to do this and the county moved to have the appeal dismissed. A superior court judge granted the motion to dismiss, citing lack of jurisdiction because of KWCR failure to attach a copy of the decision being appealed. On appeal, the court of appeals reversed, concluding that while service and filing requirements are jurisdiction, the elements of a LUPA petition, even though statutorily required, are not jurisdictional requirements that divest a superior court of
jurisdiction if not met. Additionally, KWCR had substantially complied with the requirements.
Pierce County v. State of Washington 144 Wn. App.783 (5/28/2008) [Mental health care] The Court holds that the State Department of Social and Health Services (DSHS) is financially responsible for long-term care patients and that the DSHS incorrectly withheld liquidated damages from payments to the County when the County exceeded the bed space Western State Hospital had allocated to it. The Court also held that 2006 legislation (amendments to chapters 71.05 and 71.24 RCW) was constitutional. The Court also held that the County cannot count Western State Hospital's patients in meeting its 85 percent short-term care requirement and that the DSHS did not force the County to use Medicaid funds for non-Medicaid patients. Finally, the Court held that the County was entitled to prejudgment interest on the withheld liquidated damages award, but not the long-term care damages. (This is a long---70 pages---and somewhat complicated decision; interested persons are encouraged to review the case itself.)
G-P Gypsum Corporation v. Washington State Department of Revenue, ___ Wn. App. ___ (5/20/2008) [Application of city use tax to natural gas]. Gypsum acquired natural gas at several at several locations outside of Tacoma for use within the city of Tacoma. Tacoma's utility tax was applied to Gypsum's purchase of gas. Gypsum argued that it should not be taxed for the use of the gas within Tacoma, since it first exercised dominion and control over the natural gas outside the city. The state argued that the tax applied in Tacoma, since that was the location where the gas was actually used in the manufacturing process. Citing the statute, the court held that the tax applied at the location where Gypsum first exercised its control over the tax, and that was outside the city.
West v. Thurston County, ___ Wn. App. ___ (5/13/2008) [Public disclosure] West sought copies of outside legal counsel billings for legal work performed for the county in the defense of a lawsuit. The county initially denied the request but, after a lawsuit was filed to force disclosure, provided redacted copies relating to the first $250,000 of billings (the extent of the county's deductible). The county argued that it did not have the rest of the billings and that the billings it did have were exempt as records relevant to a controversy (RCW 42.56.290). The court of appeals reversed the trial court, referencing 2007 legislation which clarified the availability of billing information (RCW 42.56.904): billings should be made available except as to work product which would include factual information which is collected or gathered by an attorney, as well as the attorney's legal research, theories, opinions, and conclusions. The court applied the legislation retroactively and found that the county could not avoid liability for the failure to provide copies simply by waiting to furnish the records until after a lawsuit was filed.
Matia Contractors v. City of Bellingham, 144 Wn. App. 445, (5/5/2008) [Claims statute] While there is a more recent court of appeals case to the contrary, the court followed the supreme court decision, Wilson v. City of Seattle, 122 Wn.2d 814 (1993), and held that the claim filing statute, chapter 4.96 RCW, applies only to tort claims. The court's decision reversed the trial court, which had concluded, based upon an earlier court of appeals decision, that decided that the claim filing requirements of chapter 4.96 RCW apply to all claims for money damages. Until changed by the supreme court, the holding in the Wilson decision stands.
Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App. 185 (4/24/2008) [Public records disclosure] Three cities by interlocal agreement formed an animal control agency. That agency then contracted with a private business for the furnishing of animal control services. A citizen, citing the public records act, sought euthanasia records from the private business and from one of the cities. The business denied the request, indicating that it was not a public agency; the city denied the request, indicating that it did not possess the records sought. A lawsuit followed, and the trial court agreed with the business/city. On appeal, the court reversed. Applying and balancing factors from a four-part test ((1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or
regulation; and (4) whether the entity was created by the government), the court reversed. Some of the employees of the business took oaths as animal control officers, and they performed police poser duties, such as euthanizing animals. The funding was primarily governmental, and the business had to follow some procedures set out by the interlocal member agencies. While the business was not established by government, balancing the four criteria led the court to conclude that the business/agency was covered by the public records act.
Lawson v. City of Pasco, 144 Wn. App. 203 (4/24/2008) [Code enforcement/land use regulation] Lawson allowed recreational vehicles to park in his residential mobile home park, contrary to city ordinance. Lawson was issued a violation notice and was ordered to remove them from his park. Lawson admitted to being in violation of the city ordinance, but
maintained that state law -- the Manufactured/Mobile Home Landlord- Tenant Act, ch. 59.20 RCW -- preempted the city ordinance because the state law authorizes, if not requires, recreational vehicles used as a primary residence to be allowed in mobile home parks. While the state legislature intended to act in the field of regulating mobile home park landlord-
tenant relationships, it did not wholly preempted local action in this field. The legislature expressly conferred concurrent jurisdiction to local municipalities in the field of regulating landlord-tenant compliance with ordinances; the state act did not preempt the local ordinance. The court also found that the ordinance's operation did not conflict with the state law; each could operate distinctly without inconsistency. The ordinance was not unconstitutional.
Lallas v. Skagit County, 144 Wn. App. 114 (4/21/2008), [Torts: quasi-judicial immunity] A deputy sheriff, removing a prisoner from the courtroom upon a judge's request, chose not to handcuff the prisoner. The prisoner bolted, ran, and collided with a court security officer, injuring the officer. The officer sued the county, arguing that the deputy sheriff was negligent by not handcuffing the prisoner. Was the deputy immune from liability because of quasi-judicial immunity? The court concluded that the deputy was not. Quasi-judicial immunity does not shield the deputy or her employer where the challenge was to the manner in which the order was carried out rather than the substance of the judge's order itself, which would have been immune.
Storedahl & Sons v. Clark County, 143 Wn. App. 920 (4/8/2008) [Land use] A hearing examiner approved of a rezone, and set out detailed findings of fact along with information on how the rezone criteria had been met. On appeal to the board of county commissioners, the rezone was overturned, although the board did not change the facts set out by the hearing examiner. On appeal, the court overturned the commissioners' decision. The Board failed to provide a statement listing the facts it found showing the appealed decision did not comply with applicable approval criteria. The court found that the hearing examiner's findings were binding, because the Board did not disagree with them. Because the Board did not disagree with any fact found by the examiner in determining that the rezone was consistent with the comprehensive plan and policies, the examiner's facts became verities and Storedahl was entitled to the requested rezone.
Kitsap County v. Smith, 143 Wn. App. 893 (4/8/2008) [Privacy] A county employee recorded numerous conversations with employees and citizens without the other parties' consent or knowledge and removed documents from his county office. The County filed a complaint for declaratory relief, injunctive relief, and damages, arguing that the employee "willfully and unlawfully recorded private and confidential conversations of County employees" without their knowledge or consent in violation of the Privacy Act, chapter 9.73 RCW, and that the employee had "willfully and unlawfully removed public records within the meaning of RCW 40.14.010 and RCW 42.56.010(2) from Kitsap County's custody and control." The trial court denied the declaratory judgment request, as well as the request for injunctive relief and damages for the asserted unlawful removal and retention of county public records. The court, on appeal, reversed and held that the Privacy Act issue involves a matter of major public importance and that there were issues of material fact related to the removal and retention of county records. The Court remanded the case to the trial court for the determination of whether a conversation with a public employee is a "private" or public conversation under the Privacy Act, 9.72 RCW and to determine who owns a public employee's own copies of work-related documents.
York v. Wahkiakum School District, 163 Wn. 2d 297 (3/13/2008) [Random drug test of student athletes] Drug and alcohol abuse in schools was identified as a serious problem. To help combat the problem, the school district instituted a random drug test program for its student athletes. Athletes were subject to periodic, random urine tests. If tests proved positive, the student could be removed from student athletics, but the test results would not be reported to the police or be included in the student's record. A challenge was brought, arguing that such testing was prohibited under the state constitution (federal cases have upheld such testing under the federal constitution). The Supreme Court held that such testing was not performed under authority of law, that there was no "special needs" exception that would allow such testing without a warrant, and that the program violated article I section 7 of the state constitution.
Storedahl Properties v. Clark County, 143 Wn. App. 489 (3/11/2008) [Stormwater regulation: tax or fee] Under the federal Clean Water Act, due to the its population, the county was required to obtain a National Pollutant Discharge Elimination System (NPDES) permit to deal with stormwater pollution. The county adopted a series of regulations to deal with stormwater and imposed fees to help pay for the costs of implementation. The plaintiff, Storedahl, challenged the fees, arguing that they were in fact taxes. Both the superior and appellate court disagreed. The fees satisfied the three-part test adopted by the court in Covell v. City of Seattle, 127 Wn.2d 874 (1995). The charge was found to be regulatory, a fact specifically noted in the language of the legislation. The proceeds of the fee are put in a special fund and used exclusively for various elements of the regulation. There was a relationship between the fee charged and the property owner's contribution to the stormwater problem.
Ventenbergs v. City of Seattle, 163 Wn. 2d 92 (2/21/2008) [Solid waste disposal] May a city contract exclusively with two solid waste disposal firms, to the exclusion of other firms? Yes. The police power given cities by the constitution allows them to provide for and regulate solid waste disposal. Seattle's contracts for solid waste disposal with Robanco and Waste Management did not constitutional privileges and immunities provisions granted by the constitution because solid waste handling is governmental in nature, and the city's actions did not deny a fundamental right given to citizens. The regulations were reasonable. Bidding was not required under RCW 35.21.156.
Washington Beef v. County of Yakima, 143 Wn. App. 165 (2/14/2008) [Valuation of property for tax purposes] This case reviews the valuation of a beef slaughter, fabrication and storage facility for tax purposes. The court reviews the various ways that property can be valued, e.g., capitalization of income and market value, and concludes that the setting the value of assets for the purpose of assessing property taxes is more of an art than a science, and gave great deference to the conclusions reached by the county assessor. An excellent discussion of valuation methods.
Champagne v. Thurston County, 163 Wn. 2d 69 (2/14/2008) [Personnel - Wage Administration] Thurston County pays its employees for nonregular wages (e.g., overtime wages) at the close of the month subsequent to when the nonregular wages were earned. Champagne sued, arguing that the process violated the Washington Minimum Wage Act (WMA), chapter 49.46 RCW, wage payment act (WPA), chapter 49.48 RCW , and wage rebate act (WRA), chapter 49.52 RCW. The court concluded that the WRA was not violated because the the County did not act willfully; there was a bona fide dispute over payment of wages. There was no cause of action under the the MWA because the county had actually paid all wages due the
employees. There was no action under the WPA since that act only provides for relief where an employer has made improper deductions at the time of termination
Fitzpatrick v. Okanogan County, 143 Wn. App. 288 (1/22/2008) [Inverse Condemnation) The plaintiffs suffered property damage following a flood; they alleged that the damage was result of the construction of a dike. The trial court dismissed the lawsuit and the plaintiffs appealed. In a split decision, the appeals court reversed and returned the case for trial. The common enemy rule, which allows landowners to repel surface waters to the detriment of their neighbors, does not apply when the landowner obstructs a watercourse or natural drainway or when the landowner obstructs riparian water from entering a flood channel. RCW 86.12.020, which authorizes counties to construct and maintain dikes and levees to protect against floods, does not provide immunity since the complaint alleges inverse condemnation.
Resident Action Council v. Seattle Housing Authority, 162 Wn. 2d (1/3/2008) [Constitutional law: Speech] The Housing Authority adopted a rule prohibiting the placement of signs on the outside of the doors to residential housing units. A lawsuit was filed and the superior court held the rule unconstitutional as a violation of both the state and federal constitutions. On appeal a divided Supreme Court affirmed. The Court concluded that the Housing Authority had failed to meet its burden of justifying a restriction on speech. The Housing authority had argued that its rule was designed to avoid the cost of refinishing doors damaged by residents' signs. The Court noted that the Housing Authority could impose restrictions that would prevent damage to its doors by requiring the use of non-damaging materials. A total ban on signs was unnecessary to support the claimed interest. Aesthetics could not justify the ban either, as other restrictions were possible instead of a total ban. The ban violated the First Amendment protection of speech.
2007
American Safety Casualty Insurance v. City of Olympia, 162 Wn.2d 762 (12/27/2007) [Contracts] The plaintiff insurance company failed to file a suit within the 180 day limit set out in its contract. The insurance company argued that the city, by agreeing to negotiate, had waived its ability to require compliance with the contract deadline. The Court held in the city's favor. Implied waiver of contractual rights requires unequivocal acts, and here the City's acts were, at most, equivocal. Agreeing to enter into negotiations, without more, does not constitute an implied waiver of contractual rights.
Soter v. Cowles Publishing, 162 Wn. 2d 716 (12/27/2007) [Public disclosure] Following the death of a student, the school district contacted its attorney, believing that litigation might ensue. The attorney hired an investigator who interviewed witnesses in anticipation of a lawsuit. A claim against the school district was ultimately compromised. Cowles Publishing made a records request for various materials associated with the case, most of which had been prepared wither by the school district's attorney or by the investigator acting on the attorney's behalf. The school district sought guidance from superior court to determine whether the records had to be furnished to the paper. A divided Court concluded that the requested records were relevant to a controversy to which the school district was a party and the records would not have been available under the civil rules of pretrial discovery because they were protected by either the work product doctrine or they reflected attorney-client privileged communications. Also, the plain language of RCW 42.56.540 allows agencies to seek a judicial determination as to whether a requested public record must be disclosed. However, if an agency has improperly denied a requester access to a public record, per diem penalties apply for everyday that access was denied.
Woods v. Kittitas County, 162 Wn.2d 597 (12/20/2007) [Land use/LUPA] The Court holds that the superior court does not have subject matter jurisdiction under LUPA to decide whether a site-specific rezone complies with the GMA. The superior court has jurisdiction only to determine whether a site-specific rezone complies with the county's comprehensive plan and/or development regulations. An adjacent property owner must challenge a local jurisdiction's site-specific decisions by filing a LUPA petition in superior court. But a challenge to a site-specific land use decision can be only for violations of the comprehensive plan and/or development regulations, but not violations of the GMA. The Court also found that the rezone was not invalid because the county continued to use preexisting zones and applied those zones to individual properties in rezones rather than implementing county-wide development regulations after adopting its comprehensive plan. The Court also resolved other LUPA-related issues in support of the rezone.
Lindell v. City of Seattle, 162 Wn. 2d 474 (12/13/2007) [Liability of city to firefighter trainee injured during training] Lindell died of injuries he sustained while training to be a member of the mounted police. A suit was brought against the city, alleging the city's negligence. Lindell's estate sought an amount in excess of the amount awarded under worker's compensation. The Court held that Lindell's "right to sue" provided for under LEOFF did not violate the city's sovereign immunity, and it likewise did not violate the privileges and immunities clause under the constitution. For purposes of LEOFF, Lindell was covered by LEOFF, even though he was in training.
Hegwine v. Longview Fibre Company, ___ Wn. 2d ___ (11/29/2007) [Employment discrimination on account of pregnancy] Neither the Washington Law against Discrimination (WLAD) nor its interpretative regulations call for an accommodation analysis in pregnancy related employment discrimination cases. The court will not impose such an accommodation analysis where the legislature has not seen fit to do so. A company can refuse to hire based on business necessity; Longview Fibre's reasons were pretextual; if failed to prove a business necessity. Fibre failed to show that refusing to hire due to a woman's pregnancy was essential to the purposes of position sought Fibre violated RCW 49.60.180(4) and WAC 162-12-140(3)(n), when it inquired as to Hegwine's pregnancy status as part of its hiring process.
Lindeman v. Kelso School District, ___ Wn. 2d ___ (11/15/2007) [Public disclosure] Two students engaged in an altercation on a school bus. The bus was equipped with a video tape system. One of the student's parents requested a copy of the tape; the school district refused and the trial court and court of appeals agreed that the tape was exempt from disclosure. The supreme court disagreed and ordered the release of the tape. The student file exemption would apply only if the District establishes the videotape is both "personal information" and "in any files maintained for students." The district failed to prove that the video tape met that criteria.
City of Spokane v. Rothwell, 141 Wn. App. 680 (11/8/2007) [Municipal Court Judges] Spokane contracts with Spokane County for judicial services provided by a municipal department of the district court. The judges assigned to the municipal department are all district court judges elected county-wide, rather than just by city residents. The judges also rotated through the municipal department. The court of appeals concluded that the municipal department lacked jurisdiction over a city case since position of municipal court judge was elected in a county-wide election of a district court seat rather than by city voters to a municipal court position, contrary to RCW 3.46.063(1) and RCW 3.46.070.
Futurewise v. Central Puget Sound Growth Management Hearings Board, 141 Wn. App. 202 (10/16/2007) [Growth Management/designation of agriculture land] Pierce County, when amending its comprehensive plan, amended the plan to exclude land parcels less than five acres from lands designated as agricultural lands of long-term commercial significance. The county's decision was based upon the argument that soil sampling for smaller parcels was not reliable and upon the predominant size of farms within the county. Futurewise challenged the county's designations. On appeal, the court concluded that the county could categorize land by size but that it erred in determining that a minimum five-acre parcel size correlated to soil sample accuracy. Nevertheless, the court agreed with the county's actions based upon the county's reliance on reports of the predominant parcel size of a small farms. The predominant size of farms, the court concluded, was instructive on determining whether land has "long-term commercial significance" for agriculture.
Abbey Road Group v. City of Bonney Lake, 141 Wn. App. 184 (10/9/2007) [Vested Rights] Abbey Road sought to construct a large condominium project. Although it had spent considerable money for the initial planning of the development, it had only filed an application for site development plan review when the city council rezoned the area (which had the effect of prohibiting the condominium construction). The court held no development rights vested when Abbey Road filed an application for site development plan review and that Bonney Lake's development scheme was not so burdensome that it unconstitutionally frustrated vesting rights under ordinances and building codes in effect when a building permit is filed, nor did it conflict with statutory or case law controlling vesting of development rights.
Biggers v. City of Bainbridge Island, 162 Wn. 2d. 683 (10/11/2007) [Shoreline Management/Moratoria] May a city place a (continuing) moratorium on permit applications for shorelines development? In a divided court, the dissent plus the concurring opinion concluded that a city may impose a reasonable moratorium. However, four of the justices, plus the concurring justice, concluded that the city's moratorium, which was periodically renewed by the city, wass unreasonable and thus unlawful.
Tukwila School District v. City of Tukwila, 140 Wn. App. 735 (9/24/2007) [Taxes and fees: Stormwater utility charge] The school district challenged the city's charge for storm and surface water utility charge, arguing that it was an unlawful tax. The district's complaint was dismissed and an appeal was brought. On appeal the court the charge is not a tax under the Covell v. City of Seattle factors because its purpose is limited to protecting property owners and local water sources from harm caused by storm and surface water runoff, the City has segregated the funds and uses them only for this purpose, and the fee is roughly proportional to the amount of impervious surface on the property being taxed.
City of Bonney Lake v. Abbey Road Group, ___ Wn. App. ___ (9/18/2007) [Land use/vesting] Abbey Road sought to construct a large condominium project. Abbey Road had submitted a development plan application for city review, but not a building permit application, when the city rezoned the property involved in the project to a zone no longer consistent with the project. Abbey Road appealed to a hearing examiner, arguing that its application for plan review had vested the project under the former zoning; the hearing examiner disagreed. Abbey Road filed a LUPA appeal with superior court, and the court overturned the hearing examiner's decision, concluding that the project had vested. The city appealed, and the court of appeals reverses the superior court decision, holding that, without the filing of a building permit application, the project had not vested. The court found that the vested rights doctrine has not been vicariously expanded to include filing an application for site development plan review. The court refused to expand the vested rights doctrine to a site development plan review application, absent a building permit application, because Bonney Lake's ordinances and processes satisfy statutory and constitutional concerns.
In Re The Forfeiture Of One: 1970 Chevrolet Chevelle, ___ Wn. App. ___ (9/17/2007) [Vehicle forfeiture] The innocent owner exception to the vehicle forfeiture provision may not be invoked by a claimant who either knew, or should have known after reasonable inquiry, of the illegal use of the property that subjects it to forfeiture. Thus, in order to benefit from the innocent owner exception, claimants must demonstrate that (1) they did not know of the illegal use to which the vehicle was being put; (2) they could not have known of that illegal use based on the information before them; and (3) they could not have known of that illegal use based on the information available to them had they conducted an inquiry a reasonable person would have conducted under the circumstances. The legislature did not intend to subject to forfeiture those vehicles used by individuals in mere possession of controlled substances (a vehicle used by an individual in possession of a controlled
substance, but not used to facilitate the acquisition of that controlled substance, is not subject to forfeiture.)
Leskovar v. Gregory Nickels, 140 Wn. App. 770 (9/17/2007) In March 2004, Seattle Mayor Nickels issued Executive Order 02-04 entitled "City Recognition of Valid Marriage Licenses." Leskovar and others challenged the order as being invalid. The trial court dismissed the challenge as did the court of appeals. To show the state has preempted the field of employee benefits for the City of Seattle. The court found to the contrary, concluding that that field remains a matter of local concern in which the City exercises broad discretion. A city's executive orders are presumed to be valid, and grants of municipal power are to be liberally construed. An executive order may be found to be invalid if (1) a state statute preempts city regulation of the subject matter or (2) the order directly conflicts with a state statute. Those who challenge the order bear the burden of proving that the ordinance is invalid. These principles are equally applicable to executive orders and ordinances.
Swinomish Indian Tribal Community. v. W. Washington Growth Management. Hearings Board, 161 Wn. 2d 415 (9/13/2007) [Growth Management] This is a challenge to Skagit County's critical areas ordinance. The Tribe challenged the ordinance alleging, among other things, that while a "no harm" provision protected the areas, it did not enhance them. The court concluded that the requirement to "protect" did not require enhancement. The court also concluded that while best available science needed to be considered and included in its record, it did not need to follow it. The court concluded that the county did not need to require buffers near rivers, where previously existing buffers had long since been removed (there is no requirement to enhance). The court found the county's monitoring system inadequate, as it included no benchmarks.
City of Pasco v. Shaw, 161 Wn. 2d 450 (9/13/2007) [Licensing of rental units/compliance with codes] To address a problem with the poor conditions of some rental units within the city, the city council passed an ordinance requiring landlords, to be licensed by the city, have inspections made of their rental units and furnish the city with certificates of inspectors certify that their units met applicable building codes. A challenge was brought, arguing that the required inspections constituted improper searches and that the inspection ordinance was too vague to be enforceable. On appeal, the court disagreed. The inspections could be performed by private inspectors, so they did not involve any government action. Also, the appellants did not establish that the ordinance, presumed constitutional, was vague.
Beaupre v. Pierce County, 161 Wn. 2d 568 (9/13/2007) The plaintiff, Beaupre, was injured following a chase when he, while approaching the vehicle of a suspect, was struck by a police officer from another jurisdiction. Beaupre, who was a police officer with the county, collected under workers' compensation and also sued for negligence. The county argued that the professional rescue doctrine bars professional rescuers from recovering under the rescue doctrine because a professional rescuer assumes certain hazards "not assumed by a voluntary rescuer." The court disagreed in this instance, holding that the doctrine does not bar the plaintiff's law suit because it does not apply to negligent or intentional acts of intervening parties not responsible for bringing the rescuer to the scene.
State v. Hatchie, ___ Wn. 2d ___ (9/6/2007) [Search warrants] Does a misdemeanor arrest warrant gives police the "authority of law" to enter someone's home? Yes, an arrest warrant -- even for a misdemeanor -- constitutes "authority of
law" which allows the police the limited power to enter a residence for an arrest, as long as (1) the entry is reasonable, (2) the entry is not a pretext for conducting other unauthorized searches or investigations, (3) the police have probable cause to believe the person named in the arrest warrant is an actual resident of the home, and (4) said named person is actually present at the time of the entry.
Kitsap County Deputy Sheriffs Guild v. Kitsap County, ___ Wn. App. ___ (9/5/2007) [Personnel; termination of police officer] A deputy sheriff, after having been terminated for, among other things, a lack of truthfulness, obtained an arbitration award requiring reinstatement. Alleging that the county failed to honor the arbitration award, the Guild, on the deputy's behalf, sued. Upon appeal, the court held that the arbitration award, which required reinstatement, violated public policy and was unenforceable. The deputy had a duty to the public and his lack of candor in the performance of his duties violated the public trust.
Quest Corp. v. City of Bellevue, 161 Wn. 2d 353 (8/30/2007) [Application of utility tax to telephone revenue] Bellevue sought to impose its utility occupation tax on certain telecommunication revenues (those associated with charges for customer access line charges(CALCs) and private line, frame relay, and ATM (automatic teller machine) charges purchased under a Federal Communications Commission tariff; (2) charges for interstate services; or (3) federally tariffed charges). The Court ruled against the city, finding that whether the charges are for access to interstate or intrastate service is not determined by looking to the customer's use of the connections (it is a question of law); and RCW 35A.82.060(1) precludes city taxation of charges for interstate service regardless of whether those charges are to another telecommunications company. Interested persons are encouraged to read the decision.
MT Development v. City of Renton, 140 Wn. App. 422 (8/27/2007) [Extension of utility service outside city limits] Where a municipality is the exclusive provider of sewer service to property outside its borders, it may not refuse to provide that service, although it may impose reasonable and lawful conditions before doing so. Reasonable and lawful conditions do not include mandatory compliance with the residential density limits in the municipality's comprehensive land use plan, even where the proposed service location is within the municipality's potential annexation area. Such a requirement amounts to zoning, and a municipality may not zone property outside its borders.
Zink v. City of Mesa, 140 Wn. App. 328___, (8/23/2007) [Public disclosure]. The Zinks made numerous and lengthy public records requests of the city. When the records were slow in coming, due to the volume of the requests and the limited size of the city staff, the Zinks sued. The trial court was sympathetic to the city, finding that, in view of the nature of the requests, the city had "substantially complied," that compliance to the requests amounted to a "practical impossibility," and that the requests amounted to unlawful harassment. On appeal, the Court of Appeals disagreed, finding that strict---not substantial---compliance was required. The city had limited the Zinks to one hour per day to review records; the Court held that that limit was not adequate. The Court further found that the city had disparately treated the Zinks, as it had no rules in place to allow its delays and limits on access; it does not matter that the city would have treated others similarly. The Court also found that the city's inclusion of staff time in making diskettes and tapes of records was permissible.
Delaney v. Spokane County Commissioners, ___ Wn. 2d ___ (8/16/2007) [Addition of district court judge] Various local officials asked the state legislature to increase the number of district court judges from nine to ten; the legislature agreed, and the county district court districting committee agreed to the increase. The county board of commissioners approved the amendment to the court districting plan but did not authorize the creation of a new judge position. Delaney, who wished to file for election to the new position, sued to mandate that the county create and budget for the new judgeship. The superior court denied the request and an appeal ensued. The Supreme Court affirmed the trial court's decision. By statute, RCW 3.34.020, for an additional judgeship to be effective, the county Board must "document[ ] its approval" and "its agreement" to fund the additional position. The Board did not "document[ ] its approval of the additional position[ ] and its agreement" to fund the position within the meaning of RCW 3.34.025. Although the Board adopted an amendment to the Plan authorizing an additional position, it specifically and affirmatively did not establish or fund the position, and that was within the Board's discretion.
Cowlitz County v. Martin, 140 Wn. App. 170 (8/14/07) [Condemnation] The county sought to condemn property to allow it to increase the size of a culvert to improve fish passage; the property owner objected and sued. On appeal, the court held that (1) the Salmon Recovery Act does not authorize counties to condemn private property, (2) repair and improvement of salmonid fish runs is not a public use under RCW 8.08.010, and (3) a County attorney does not have authority under RCW 8.08.010 to articulate a different or additional purpose for condemnation not stated by the county's Board of Commissioners.
Post v. City of Tacoma, 140 Wn. App. 155 (8/14/07) [Nuisance/LUPA] Mr. Post owned numerous properties throughout the city, some of which, the city alleged, were in violation of the city's Minimum Building and Structures Code. Mr. Post accumulated almost $400,000 and he sued, alleging that the fines were excessive, unconstitutional, and outside the City's statutory authority. The trial court disagreed, finding, among other things, that Post had failed to comply with LUPA, having not filed his appeal within 21 days of the imposition of the penalties. An appeal was filed, and the court affirmed. Was the imposition of fines for noncompliance a "land use decision?" Yes, the court concluded. Were the notice of violations and the imposition of fines a "final determination?" Yes. The hearing examiner (who made the determination) was the highest level of authority to make the determination and, therefore, his decisions were final and within LUPA's jurisdiction.
State v. Foxhoven, ___ Wn. 2d. ___ (8/2/07) [Rules of evidence] The court concluded that the trial court could admit as evidence the fact that each of the defendants had used one of the graffiti "tags" found at the current crime scene on previous occasions. The prior usage can be admitted to show identity. Differences in font, style, medium, and the objects on which the graffiti was placed go to the weight of the evidence, not its admissibility. For example, if a tag like the "mark of Zorro" is left at the crime scene and there is evidence that the person charged with the crime made that mark at other crime scenes, it is admissible.
Burns v. City of Seattle, ___ Wn. 2d. ___ (8/2/07) [Franchise agreements] The city of Seattle provides electricity to the residents of several nearby cities pursuant to franchise agreements. One of the terms of the franchise is that Seattle will pay a percentage of its revenue from the outside sale of electricity to the benefiting cities on condition that those cities will not develop their own electric utility. Petitioners challenged payment provisions s of the franchises, arguing that they violate RCW 35.21.860(1), ("[n]o city or town may impose a franchise fee or any other fee or charge of whatever nature or description upon the light and power . . . . distribution business[]." ) The court disagreed with the petitioners and held that the payment provision did not fall within the statutory prohibition because the cities did not exact the payments through their governmental powers of taxation and regulation. Rather, acting in a proprietary capacity, the cities negotiated the payment provision as consideration for a special benefit (the cities' agreement to forbear operating their own electric utilities) conferred on Seattle City Light independent from the privilege of operating a franchise.
Glasser v. Seattle Hearing Examiner, ___ Wn. App. ___ (7/30/07) [SEPA Appeal] The appellant contended that the Hearing Examiner wrongly prohibited her from presenting evidence or argument challenging the continued validity of the analysis in the programmatic SEPA document underlying the City's decision to proceed with an expanded hatchery. The trial court disagreed and this appeal ensued. On appeal, the court reasoned that the SEPA phased review regulations are designed to streamline environmental review as a proposal progresses from broad planning to narrow site- specific implementation. The scope of the project EIS is to be limited accordingly. The requirement to review a nonproject EIS to "ensure that the analysis is valid" refers to the validity of the environmental impacts analysis in the programmatic EIS, not the purpose and need or the range of alternatives. Allowing opponents to use a project EIS to collaterally attack previous programmatic policy decisions would disrupt the finality of the decision and eliminate any benefits of phased review. Parties who are dissatisfied with a programmatic EIS may challenge it directly.
City of Woodinville v. Church of Christ, 139 Wn. App. 639 (7/17/07) [Land Use] The city had denied an application for a "tent city" (a temporary home for the homeless) on private property, since a moratorium was in effect for the zone in which the church property was located, and on private property, apparently based in part on adverse testimony from citizens. After disposing of several preliminary matters, the court, in a challenge based upon constitutional protections, held that strict scrutiny does not apply under the First Amendment. There was no evidence in the record that the City's zoning laws or the moratorium had a purpose to restrict religious practices. The city's laws were of general applicability and not subject to strict scrutiny analysis. The court also denied a challenge under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). The court held that the Church has failed to show that the City's actions imposed a substantial burden to the free exercise of religion by its members. For example, the church failed to establish that the use of the indoor church buildings was an ineffective option for providing shelter to the homeless. The Church did not show that using its buildings to shelter the homeless was not a viable alternative.
Spokane Research & Defense Fund v. Spokane County, 139 Wn. App. 450 (6/28/07) [Tax exemption of publicly-owned garage] In a sophisticated financing agreement, a parking garage was built in downtown Spokane. The garage was constructed by a developer and sold to a private nonprofit organization and was managed by a public development authority and, following litigation, taken over by the city in January 2005. At issue was whether property taxes were owed while the garage was owned by the nonprofit organization. The court concluded that the garage was tax exempt..
Brevick v. City of Seattle, ___ Wn. App. ___ (6/25/07) {Claims statute] The plaintiff Brevick was injured in an automobile accident. He filed a tort claim against the city, then a lawsuit, and for 18 months his attorney sought to reach an agreement. When the court refused to grant a continuance, Brevick voluntarily dismissed the lawsuit. Later Brevick refiled a lawsuit, but without filing a new claim against the city. The city sought dismissal of the lawsuit based upon the plaintiff's failure to file a claim. (Previously the city admitted that a claim had been filed (prior to the first lawsuit). The court allowed the suit to continue, finding that the city's earlier admission that a claim had been filed estopped the city from now arguing to the contrary and that the negotiations that had occurred on the original claim had waived the city's right to now challenge the claim.
Valley Environmental Laboratory v. Yakima County, ___ Wn. App. ___ (6/15/07) [Conflict of interest] A county employee, who had a close relationship to the owners of a laboratory, referred county business to that laboratory. Upon learning of the relationship, the county refused to pay for the work that had been performed, citing chapter 42.23 RCW. The employee reported to the surface water manager, who in turn reported to the appointed assistant director of public works for environmental services. He was the lowest on a four-tiered organizational chart and his position was "non-exempt" and "non-supervisory." And he was required to be a member of a union. Was the employee an officer? The definition of "municipal officer" in this statute is expansive. The statute defines "municipal officer" as "all elected and appointed officers of a municipality, together with all deputies and assistants of such an officer, and all persons exercising or undertaking to exercise any of the powers or functions of a municipal officer." RCW 42.23.020. The question, the court suggested, was whether the employee exercised "any of the powers or functions of a municipal officer." RCW 42.23.020. He does not have to be a "municipal officer" to fall within the purview of the statute. He need only exercise the power of a municipal officer. The case was returned to the trial court to make that determination.
Alprin v. City of Tacoma and Tacoma City Utilities, 139 Wn. App. 166 (6/5/07) [Tort liability] Alprin, while operating a sailing boat, struck electrical transmission lines that crossed a body of water. The lines had been noted on a NOAA navigation map and were highlighted on the water by red buoys. The court upheld a judgment in favor of the city, finding: (1) Alprin was presumed to be at fault because his vessel was in an allision; (2) Alprin could not show that Tacoma breached any duty because it provided adequate notice of the wire obstructions as a matter of law where the power lines' location and clearance appear in the NOAA charts for Henderson Bay; and (3) Alprin could not show he was without fault because a recreational boater is charged with knowledge of all warnings in a NOAA chart, and he is required to maintain a lookout at all times.
Parrilla v. King County, 138 Wn. App. 427 (5/7/07) [Torts] A bus passenger, who had been acting erratically, was left on a bus when the driver disembarked. The passenger drove the bus down the street, hitting and damaging several automobiles, including that of the plaintiff, Parrilla. Was the county required to provide others, nonpassengers, with a high degree of care? Yes. The county owed a duty to guard the Parrillas against the foreseeable criminal conduct of the passenger where the passenger's affirmative act exposed the Parrillas to a recognizable high degree of risk of harm through such misconduct, which a reasonable person would have taken into account.
City of Medina v. Primm, 160 Wn. 2d 268 (5/3/07) [Obtaining court services through interlocal agreement] May one city enter into an interlocal agreement with another city, operating its court in the other jurisdiction, using the other city's courthouse and judge? Yes. Under RCW 3.50.020, a municipal court has jurisdiction over traffic infractions and violations of a city's code, plus those powers "conferred by statute." Under RCW 39.34.080, cities may contract with one another "to perform any governmental service," without exception for municipal court services. These statutes authorize the extraterritorial operation of municipal courts pursuant to court-sharing agreements between cities, as apparent in RCW 3.50.805 (governing termination of municipal court services performed by one municipality on behalf of another) and RCW 3.62.070 (regulating the fees cities must pay to district courts for enforcement of city ordinances except "where a city has contracted with another city for such services pursuant to chapter 39.34 RCW").
San Juan County v. No New Gas Tax, 160. 2d 140 (4/26/07) [Election campaigning] Must on-air support of an initiative campaign by radio talk-show hosts be disclosed as a campaign "contribution" under the Fair Campaign Practices Act (FCPA), chapter 42.17 RCW? The Supreme Court concluded that there was no contribution involved. The radio broadcasts at issue fall within the statutory media exemption (RCW 42.17.020(15)(b)(iv)) because they aired during the content portion of a regularly scheduled radio program, for which the broadcaster does not normally require payment, on a radio station that is not controlled by a candidate or political committee. Because the media exemption applies, the radio broadcasts are not a campaign "contribution" within the meaning of RCW 42.17.020(15)(a).
Sanders v. City of Seattle, 160 Wn. 2d 198 (4/26/07) [First Amendment rights] There Westlake Center [a downtown mall] had an oral policy in effect which required persons using the interior public easement to hold stick-mounted signs down. During an anti-war rally, protesters were in the mall, holding anti-war signs. Some were removed and others were barred from the mall. A constitutional challenge was filed. The Supreme Court upheld the mall's actions, holding that not every regulation of speech is a prior restraint. Regulations that do not ban expression but instead impose valid temporal, geographic, or manner of speech limitations are analyzed as time, place and manner restrictions. Where a nonpublic forum is involved, speech may be restricted by reasonable time place and manner restrictions, and by distinctions that are reasonable in light of the purpose served by the forum and are content neutral. The oral policy requiring persons using the interior easement to hold stick-mounted signs down was not a ban on speech, but instead imposed valid time, place and manner restrictions. The policy was content neutral. The manner of speech was regulated for the protection of other persons using the Center and to keep the easement passage open and accessible. This limitation was especially important because escalators, which must be traveled carefully, form a significant part of the easement. The geographic location was also validly limited because while signs had to be lowered in the Center itself, they could be carried aloft on nearby public sidewalks outside of and adjacent to the Center.
State v. Jorden, ___ Wn. 2d ___ (4/26/07) [Search and seizures] The police, while making a random check of a hotel registry, discovered the name of a person (Jorden) for whom an arrest warrant was outstanding. Jorden was arrested and, during the arrest, illegal drugs were discovered in plain view. Jorden appeal, challenging the search. The Supreme Court agreed. Information contained in a motel registry constitutes a private affair under article I, section 7 of the Washington State Constitution because it reveals sensitive, discrete, and private information about the motel's guest. Absent a valid exception to the prohibition against warrantless searches, random viewing of a motel registry violates article I, section 7 of the Washington State Constitution. The evidence obtained from the registry of the Golden Lion Motel, which led officers to Jorden's room, was obtained through unlawful means and should have been excluded.
Eugster v. City of Spokane, 139 Wn. App. 21 (4/24/07) [Settlement of lawsuit and related issues] This is another chapter in a string of cases involving the construction of a parking garage in Spokane. The court addresses a variety of issues, including whether Mr. Eugster had standing to bring the suit (apparently not), whether he was collaterally estopped, since the settlement at issue was reached as result of a lawsuit he brought, whether the settlement violated the state accountancy act or the constitutional prohibition against gifts (it did not; it involved the settlement of a claim). Mr. Eugster argues that the city's settlement violated the off-street parking facilities statute, chapter 35.86 RCW. The court concluded that it did not.
Ford Motor Co. v. City of Seattle, 160 Wn. 2d. 42 (4/12/2007) [Application of business and occupation tax to wholesaling] Both Seattle and Tacoma imposed a business and occupation ("B & O") tax on Ford's wholesaling activities. A B&O tax on engaging in the business of wholesaling is levied upon the privilege of doing business as a wholesaler, not upon the actual sales at wholesale. (A tax imposed on the actual sale of products is, by definition, a sales tax. B&O taxes, on the other hand, are not sales taxes.) Ford appealed application of the tax and, in a 5-4 decision, the Court upheld the cities' tax on Ford's wholesaling activities. Ford had stipulated that various activities were for the business purposes of selling its products to dealers located in Tacoma and Seattle and helping those dealers sell Ford products to retail customers. Ford argued the tax calculation should not include wholesale auto sales. The Court disagreed, found that the cities were properly apportioning the taxes, and held that the cities were properly classifying the scope of Ford's business. The Court also found that the cities' ordinances limited their taxing power to only those gross receipts derived from the sale of goods delivered into the cities. Among other Ford arguments, the court rejected the argument that the cities' tax was an unconstitutional burden on interstate commerce.
Thurston County v. Western Washington Growth Management Hearings Board, 137 Wn. App. 781 (4/3/2007) [Growth Management] A citizen's organization challenged some growth management and comprehensive plan amendments made by the county. On appeal, most challenges were upheld. The court concluded that the organization (Futurewise) had standing, since members had appeared to participate. The county argued that parts of its comprehensive plan that was not altered by new amendments were not now subject to appeal. The court concluded the challenge should be allowed, since a challenge may be made against an action or a failure to act. The court overruled the lower court decision relating to the use of parcel size (as one factor) in the designation of agricultural lands of long term significance. The court further concluded that the hearings board erred in requiring the county to prove that its plan provided a variety or urban densities (rather than having Futurewise prove invalidity). The court invalidated amendments to the UGAs (the court concluded that the hearings board did have jurisdiction to review the UGAs).
City of Arlington v. Central Puget Sound Growth Management Hearings Board, 138 Wn. App. 1 (3/26/2007) [Growth Management] The county declared certain property, located near two highways and the city or Arlington, was not land of long-term commercial significance to agriculture and thus eligible for redesignation to urban commercial use. The county also placed the land in the Arlington UGA. The county's actions were reversed by the Hearings Board. The court of appeals concludes that the Hearings Board had erred. (The Hearings Board had (improperly) dismissed certain evidence which would have supported the county's decisions.) There were also facts in the record that supported the conclusions that the land in question is characterized by urban growth and/or adjacent to territory already characterized by urban growth and thus eligible for inclusion in a UGA..
Griffin v. Thurston County County Board Of Health, 137 Wn. App. 609 (3/20/2007) [Denial of on site sewer system for failure to meet requirements] Griffin sought a permit for an on-site sewer system so he could construct a residential home on an undersized lot. The lot's dimensions failed to meet county standards in four respects. While waivers for the deficiencies were issued, an on-site sewer system could only be allowed if the requesting party "meets all requirements" in the regulations other than the minimum lot size. Can an on-site sewer system be allowed when some of the requirements have been "waived"? The court concluded "No," the "all requirements" the portion of the ordinance at issue cannot include "requirements" that have been waived or set back. If "all requirements" included waivers and setbacks, the language would be meaningless and superfluous. Affirmed at 165 Wn. 2d 50 (2009).
Home Builders Association of Kitsap County v. City of Bainbridge Island, 137 Wn. App. 338 (2/21/2007) [Building permit fees] In order to develop an affordable housing trust fund, the city placed a surcharge on the fees it charges for building permits and plan reviews. The Home Builders challenged the rew fees, arguing that they were violative of RCW 82.02.020. On appeal the Home Builders argued that the burden of proving the reasonableness of the fees fell on the city and that the wrong standard was used to determine reasonableness. The court held that the burden of proving whether the fees charged fell within an exception to RCW 82.02.020 (which allows fees for the "processing applications, inspecting and reviewing plans, or preparing detailed statements required by chapter 43.21C RCW ") rests with the city. It also held that the reasonableness of the fees charged must be judged according to whether they are reasonable, that is, "being or remaining within the bounds of reason: not extreme: not excessive," rather than on whether they are "grossly disproportionate." Further, the court found that the trial court erred when it reached its decision on the reasonableness of the City's permit fees based on general accounting and cost allocation principles and the City's costs of regulation, instead of focusing on evidence of costs the legislature specifically allowed in RCW 82.02.020.
Tingey v. Haisch, ___ Wn. 2d. ___ (2/15/2007) [Statute of limitations] This is not technically a city or county case. It involves a lawsuit by a lawyer seeking payment for work that was performed. Tingey performed legal services for the Haischs, charging on an hourly basis, but without a written contract. When payment was not forthcoming, Tingey sought to collect. Haisch argued that the three-year statute of limitation applied, as there was no written contract. Tingey prevailed in superior court, but the court of appeals overturned. The supreme court holds that the relevant statute of limitations is six years, the period provided for accounts receivables. The court states: "[The term] "account receivable" as used in RCW 4.16.040(2) is an amount due a business on account from a customer who has bought merchandise or received services. This meaning encompasses a balance owed by a client to an attorney for legal services performed on behalf of the client on an hourly fee basis without a written fee agreement. Thus the six-year limitation for "[a]n action upon an account receivable incurred in the ordinary course of business" applies to Tingey's action to collect attorney fees from Haisch." The court's holding may have application to the provision of utility services, which often are provided in the normal course of business without a written contract.
Saben v. Skagit County, ___ Wn. App. ___ (2/12/2007) [Land use/violation of dispute settlement agreement] The Sabens sought to operate a tree farm in Skagit County; they applied to build a residence, shop, and septic system on the property. Although the permits were initially issued, due to conflicting regulations, the county then revoked the permits. The Sabens appealed and, after discussion with between their attorney and the prosecutor's office, the matter was settled and the permits were reinstated. The Sabens, relying on their agreement with the county, began work on the property. Thereafter, following advice from outside counsel, the county again reversed its decision and withdrew the permits. The Sabens sued. The superior court ruled that the county had breached its settlement agreement with the Sabens. On appeal, the court agreed and returned the decision to superior court for determination of damages.
Sleasman v. City of Lacey 159 Wn. 2d 639 (2/8/2007) [Land use/meaning of "developed"] The city required a permit to remove trees from undeveloped or partially developed properties. The Sleasmans cut down 18 trees in their back yard and were fined by the city; they appealed. The court did not address a vagueness argument, since it was not required to do so, given its holding. However, the court did engage in statutory construction, determining what "developed" and "partially developed" means. The court held that "developed property" means a lawful building site made suitable for sale or use. "Partially developed" refers to property that is either in an area where part is raw land that is unsuitable for building or where the area as a whole is not yet finally developed so it is not yet a lawful building site. The Sleasmans' property was developed, the court concluded, so the permit requirement did not apply. The court suggested that the city was confusing "developed" with "improved."
Westway Construction v. Benton County, ___ Wn. App. ___ (2/7/2006) [Land use appeal] The county restricted an application to mine and crush rock on environmental grounds. An appeal followed. The court rejected an appeal under RCW 64.40.020(1), as the appeal was not brought by an owner of interest in the property involved; there was no standing. Additionally, such a claim may only be brought within 30 days following an exhaustion of remedies; the claim was filed before there was an exhaustion of remedies. A 1983 claim was denied, as it was not filed in a timely manner (within three years). A negligence claim was denied because the court action was begun before 60 days had run from the date of filing of a claim. The court also denied an estoppel argument and a fraud claim was filed after the running of the statute of limitations.
Clallam County Citizens For Safe Drinking Water v. City Of Port Angeles 137 Wn. App. 214 (2/6/2007) [SEPA/fluoridation of water] Is the decision to fluoridate the public water supply was categorically exempt from Environmental review under the State Environmental Policy Act (SEPA)? The court of appeals affirmed the decision of the superior court that the decision was/is exempt. WAC 197-11-845 categorically exempts from review "[a]ll actions under programs administered by the department of social and health services as of December 12, 1975." Fluoridation is such a program (even though it is now under the Department of Health). The court rejected the argument that the local fluoridation decision was separate from the program administered by the state. The fact that the city had issued a DNS for the decision does not prevent it from being exempt from SEPA.
Yousoufian v. The Office Of Ron Sims, ___ Wn. App. ___ (2/5/2007) [Public records/calculation of penalty] If a public agency fails to provide a nonexempt record for review or copying, it can face a penalty of between $5 and $100 for each day the record is withheld. How does the court determine where the penalty should be set in the range? The court here offered the following advice: "The minimum statutory penalty should be reserved for such "instances in which the agency has acted in good faith but, through an understandable misinterpretation of the PDA or failure to locate records, has failed to respond adequately." Then, working up from the minimum amount on the penalty scale, instances where the agency acted with ordinary negligence would occupy the lower part of the penalty range. Instances where the agency's actions or inactions constituted gross negligence would call for a higher penalty than ordinary negligence, and instances where the agency acted wantonly would call for an even higher penalty. Finally, instances where the agency acted willfully and in bad faith would occupy the top end of the scale. Examples of bad faith would include instances where the agency refused to disclose information it knew it had a duty to disclose in an intentional effort to conceal government wrongdoing and/or to harm members of public. Such examples fly in the face of the PDA and thus deserve the harshest penalties."
Pham v. City of Seattle, 159 Wn. 2d 527 (2/1/2007) [Employment discrimination/calculation of award] Pham prevailed in a discrimination lawsuit against the city. In determining the cash award for the plaintiff, the trial court did not award an additional amount to reflect the tax consequences of a lump sum payment for non-economic losses (pain, suffering, emotional distress). The supreme court concludes that the trial court did not err in declining to award an offset for the tax consequences of their noneconomic damages. The court also concludes that the trial court did not abuse its discretion in calculating the lodestar amount (a calculation of attorney fees). However, the trial court failed to recognize that when evaluating the propriety of a contingency multiplier (an addition amount awarded for attorney expenses, given in recognition of the high risk the attorneys take without assurance that their efforts would be compensated), it is improper to consider the inability of the
plaintiffs to clearly articulate their claims or provide substantial supporting evidence.
Okeson v. City of Seattle, 159 Wn. 2d 436 (1/18/2007) [Finance/use of utilities monies] May a municipal utility mitigate the effects of its greenhouse gas emissions by paying public and private entities to reduce those entities' emissions? The Court held that combating global warming is a general government purpose not a proprietary utility purpose. Therefore, such mitigation expenses must be borne by general taxpayers rather than utility ratepayers.
Clark v. City of Kent, 136 Wn. App. 668 (1/16/2007) [Personnel/payment of wages] May a city that pays its employees twice per month, in order to facilitate bookkeeping, maintain a payroll system in which wages earned up to 14 days before each payday are withheld from a current pay period and paid on the following regular payday? Yes. WAC 296-128-035 (an employer may implement a regular payroll system in which wages from up to seven days before pay day may be withheld from the pay period covered and included in the next pay period) does not preclude such a system. The court found that employers who pay wages on a more than once-a-month schedule are not limited by the seven day rule; they have a longer period of time, allowing them to process the payroll for such things as overtime and irregular pay.
Spokane & Eastern Lawyer v.Tompkins, ___ Wn. App. ___ (1/9/2007) [Public disclosure] A nonprofit corporation sought copies of correspondence from the Spokane Superior Court to the state and local bar associations. The request was denied and the nonprofit sued under the Public Disclosure Act. On review and citing earlier authority, the court denied the request, finding that the court was not an "agency" under the Public Disclosure Act and thus was not required to provide the requested letters.
2006
Lewis v. Whatcom County, ___ Wn. App. ___ (12/26/2006) [Torts/negligent investigation] Lewis sued the county, alleging that the sheriff's office had failed to investigate allegations that an uncle had sexually abused her. The county argued that a statute requiring investigation, RCW 26.44.050, only applied if the abuser was a parent. The court disagreed, finding that there was no such limitation and that the county had a duty to make a reasonable investigation of the allegations.
1000 Friends of Washington v. McFarland, 159 Wn. 2d 165 (12/21/2006) [GMA and the power of referenda] King County, as part of its comprehensive plan updating activities, adopted ordinances regulating stormwater, clearing and grading, to help protect critical areas, as required by the state Growth management Act (GMA). McFarland circulated petitions, seeking a referendum on the critical area ordinances. Superior court granted a summary judgment, finding that the ordinances were not subject to referendum; McFarland took a direct appeal to the Supreme Court, which upheld the superior court's judgment. McFarland sought to have the court reverse an earlier opinion, finding that GMA ordinances were not subject to referendum; the court declined to do so. The requirement to protect critical areas had been given to the county legislative body, and thus was not subject to referendum. The GMA process requires significant public involvement, which negates the need to submit GMA ordinances to the public for referenda. The Legislature, recognizing the Supreme Court's earlier decision (denying a referendum) chose not to alter the statutes. The ordinances under review related to the protection of critical areas and were necessary for GMA compliance.
Adams v. City of Spokane, 136 Wn. App. 363 (12/19/2006) [Taxation of utility] Adams claims the city illegally collects money from its public utility ratepayers to pay the business and occupation tax imposed by the City on public utilities. Adams argued that the utility could not pass on the tax to its customers. The court disagreed; the taxes are part of the cost of doing business. Adams argued that by having the customers reimburse the tax, they are not receiving the full value of the services they pay for; the court disagreed. adams argued that the city could not tax the portion of a customer's payment attributable to capital contributions; the court concluded the city could, as that portion is part of the gross revenue upon which the tax is calculated. Adams argued that the city did not properly disclose the tax, but the tax is on the utility, not the customer, and there is no requirement to disclose the tax to the customer. The court rejected an equal protection argument.
Herbert v. Public Disclosure Commission, ___ Wn. App. ___ (12/18/2006) [Use of government facilities for political purposes] Herbert used a school e-mail system to notify employees that initiative petitions had been placed in their school mailboxes; he also asked that completed petitions be placed in his mailbox. A complaint was filed, alleging a violation of RCW 42.17.130, which prohibits the use of government facilities for support or opposition to a ballot proposition. Herbert was fined, and he appealed. Herbert argued that the use was di minimis as it did not result in a use having any economic value and that it was part of the school's normal and regular activities. The court concluded that there is no di minimis exception to the prohibition and that it was not a normal or regular activity to use school mailboxes for political purposes. The court found that the e-mail and school boxes were not public forums and that the statute's restrictions were reasonable and viewpoint-neutral (and thus constitutional). The court also found that there were alternative means of communication and rejected arguments that the restrictions were arbitrary and capricious or overbroad.
Community Telecable Of Seattle v. City Of Seattle, ___ Wn. App. ___ (12/11/2006) [Telephone utility tax application to internet transmission activities] May the city's telephone utility tax be applied to Comcast's Internet transmission activities? While the trial court concluded it could not, on appeal, the decision was reversed. The court concluded that: the tax is not barred by the Washington Internet Tax Moratorium; the tax is exempt from the federal Internet Tax Freedom Act's moratorium on taxes on Internet access under a grandfather clause; and the tax is not discriminatory under the federal Internet Tax Freedom Act.
Pierce County v. State, 159 Wn. 2d 16 (12/7/2006) [Impairment of contract/ effect of Initiative 776 on bond issue] Sound Transit was created in 1996 by a vote of the people to address the transportation needs of the Puget Sound region. Various improvements were to be funded either directly or indirectly (through bonds) by a motor vehicle excise tax (MVET). In 2002 the voters approved initiative 776 which, among other things, reduced the statewide MVET to $30 and prohibited Sound Transit from imposing a separate MVET. Initiative 776 was upheld by the courts, but the court did not determine whether the initiative impaired contracts (which would be prohibited). Litigation ensued. The Supreme Court concluded that the initiative did impair contracts (the bonds that had been issued). Impairment is shown if 1) a contractual relationship exists, 2) the legislation substantially impair the contractual relationship, and (3) if there is substantial impairment, the impairment is neither reasonable nor necessary to serve a legitimate public purpose. The bonds were a contract, repeal of the MVET impaired the contract, and a change of tax policy is not a purpose that outweighs the impairment. The court also concluded that the bond contract itself was not invalid.
Holder v. City of Vancouver, 136 Wn. App.104 (12/5/2006) [Appeal of land use decision] Holder appealed a hearing examiner's order which found that he had violated a city ordinance by parking and storing vehicles on unimproved surfaces. While the petition for review referenced LUPA, LUPA was neither addressed or argued during the appeal. Likewise, LUPA was not addressed or argued opn Holder's appeal to the court of appeals. The court held that it would not consider LUPA since it apparently had been abandoned in superior court and during the later appeal. The appellant thus abandoned his right to appeal. Holder did not file a petition for discretionary review
City of Spokane v. County of Spokane, 158 Wn. 2d 661, (11/16/2006) [Courts/ Termination of Municipal Department of District Court] The city of Spokane gave notice of its intent to terminate its municipal department of the district court and establish its own municipal court under authority of chapter 3.50 RCW. As required by statute, the city and county entered into negotiations to create an agreement addressing costs, among other things. While an agreement was reached, there was not any agreement as to what costs the city would need to pay. The county district court also alleged that it was a necessary party to the agreement. Litigation ensued and, eventually, the case was submitted to the supreme court. The court held that RCW 3.46.150(1) requires only that a city agree to pay for the costs of criminal cases that will be filed in district court as a result of the termination of a municipal department. The agreement between the City and Spokane County satisfied that requirement. The court also held that municipal cases open on the date that the municipal department is terminated must be transferred to the new independent municipal court.
Interlake Sporting Association v. Boundary Review Board, 158 Wn. 2d 545 (11/9/2006) {Annexations/Boundary Review Board authority] Redmond, following several failed attempts to annex territory, pared the area down and obtained 60 percent approval from property owners, set out in an annexation petition. The area covered by the petition and approved by the council covered 58.96 acres. Upon request by King County, the boundary review board (the "board") accepted jurisdiction and approved an annexation of 184 acres, more than three times the area proposed for annexation by the petition. The board's decision was appealed to and approved by the superior court. After further appeal, the supreme court reversed, concluding that while the city could have sought to add more area when it met with the proponents, it could not do so after the area was set out in the annexation petition (and the board could not do so either) as to do so would be inconsistent with RCW 35A.14.140. Also, with the addition of territory, the annexation petition no longer satisfied the necessary approval requirements. In addition, the fact that the annexation would be consistent with the growth management act does not matter, since growth management still requires that the annexation statutes be followed. The court further expressed concern about annexing a larger territory where the property owners previously opposed the annexation. The court further concluded that it would be improper to require the area added by the boundary review board to be both subject to the city's previous debt and the city's preannexation zoning, as the residents had not had an opportunity to object.
KMS Financial Services v. City Of Seattle, 135 Wn. App. 489 (10/31/2006) [Taxation] The City of Seattle imposed a business and occupation (B&O) tax on the entire gross income of KMS Financial Services, Inc., a brokerage house based in Seattle. KMS argued that the City taxed earnings beyond its constitutional power, and sought a refund of the tax. Both parties filed motions for summary judgment. The trial court granted KMS's motion and denied the City's motion. The City appeals and the court rejected KMS's argument that the City's tax violated equal protection, but agreed with its argument that by seeking to tax income generated by extraterritorial activities, the City's B&O tax as applied to KMS exceeded federal and state constitutional limits. KMS, the court concluded, was entitled to apportionment. Neither party, the court held, had correctly identified the measure of the tax, so the case was remanded for further proceedings.
Scoccolo Construction v. City of Renton, 158 Wn. 2d 506 (10/26/2006) [Construction contracts/liability due to delay caused by franchisee] The City contracted with Scoccolo for the widening of a street. As result of the widening, certain utilities operating under franchises with the city needed to be relocated. Scoccolo was to coordinate with the utilities for the relocation. The project was delayed, caused in part by delays in the utility relocations, resulting in additional costs to Scoccolo. Scoccolo sued and the city argued that a clause in its contract did not provide for the payment of additional compensation for delay caused by the actions of any utility company. Scoccolo referenced RCW 4.24.360 which provides that any waiver, release, or extinguishment of the rights of a contractor arising out of unreasonable delay in performance where the delay is caused by the acts or omissions of the contractee or persons acting for the contractee is against public policy and is void and unenforceable. The Supreme Court held that the utilities, operating under franchises with the city, were "acting for" the city; accordingly, the waiver of additional compensation for delay clause in the city's contract with Scoccolo was void and Scoccolo was entitled to damages, interest and attorney fees.
SuperValu Holdings v. Department of Labor and Industries, 158 Wn. 2d 422 (10/19/2006) [Personnel/ergonomics] The Department of Labor and Industries sought information by subpoena to determine to determine whether certain workplace injuries were caused by, among other things, ergonomic hazards. The court refused to enforce the subpoena, citing the passage of Initiative 841, which repealed the state's ergonomic rules. On direct appeal, the supreme court concluded that while the initiative had eliminated the specific state ergonomic rules, it did not prohibit the Department of Labor and Industries from taking action under its general authority under RCW 49.17.060(1).to address serious or deadly ergonomics-related workplace hazards.
Pacific Northwest Shooting Park Assn. v. City of Sequim, 158 Wn.2d 342 (10/12/2006) [Conditioning use of convention center] The appellant sought use of the city convention center for a gun show. The permit was issued but with certain conditions, such as only licensed dealers would be allowed to sell guns at the show. Pacific Northwest objected on a number of grounds (several of which were rejected on procedural grounds), including the allegation that the city's conditions violated RCW 9.41.290-.300 (relating to the state's preemption of firearm regulations). The court disagreed. The two statutes, when considered together, explicitly allow cities to enact laws and ordinances restricting firearm possession in stadiums and convention centers they operate. Since one must possess a firearm in order to show or sell it, it is logical that the city could also regulate the sale of firearms at its facility. In addition, when a municipality acts in a capacity that is comparable to that of a private party, the statutory preemption clause does not apply.
Yakima County v. Evans, 135 Wn.App.212 (10/5/2006) [Eminent domain] The county, after listing a particular project in its transportation improvement plan for a number of years, after having given public notice of its hearings and consideration of the plan and its amendments, authorized construction of a road project requiring acquisition of land from the Evans. Unable to agree to the purchase of the land, the county began condemnation proceedings, resulting in the court approving the condemnation. The Evans appealed, arguing that no public necessity was shown, proper notice was not given, that the project failed to protect agricultural land, contrary to growth management, among other things. The appellate court disagreed and affirmed. The court will not overturn the finding of public necessity unless it was arbitrary. Here the was testimony supporting the need for the improvement. Personal notice was not required; general notice of the plan consideration was given. The project did support agriculture, as it provided for improved transportation for agriculture purposes..
City of Fircrest v. Jensen, 158 Wn. 2d. 384 (10/5/2006) [DUI prosecution] Mr. Jensen was charged with DUI and took a blood alcohol concentration test (BAC), the results of which were introduced at trial. Jensen appealed his conviction, arguing that the DUI statute allowing the introduction of the BAC results was unconstitutional, as it contained more than one subject in its title, it infringed on the court's authority, and he was denied due process by the creation of a mandatory rebuttable presumption. The court disagreed and affirmed the conviction. We conclude that the legislation had adequately
announced that it was amending the Motor Vehicle Act, and that its subject matter was within the purview of the Motor Vehicle Act. As to whether the statute infringed on the court's authority, the court concluded that the statute was permissive, not mandatory, and can be harmonized with rules of evidence. Nothing indicated that a trial court could not use its discretion to exclude the test results under the rules of evidence. Finally, the court concluded that Jensen had not shown an mpermissible or unconstitutional shifting of the evidentiary burden.
Koenig v. City of Des Moines, 158 Wn.2d 173 (8/31/2006) [Public disclosure of police records] Police records regarding the sexual assault of a minor were requested by the child's father, who requested the records by naming his daughter. Release was initially denied, although later allowed but with sexually explicit details redacted. The supreme court held that the records must be released, as only identifying information is exempt from disclosure. The redaction of sexually explicit details was not permitted under the statute. The court further concluded that statutory penalties for the improper withholding of records could not be reduced.
Qwest v. City of Kent, 157 Wn. 2d. 545 (8/10/2006) [Telecommunications/reimbursement for relocation of facilities] The US District Court certified two questions concerning the application of RCW 35.99.060(3), which relates to the reimbursements a city may owe (or not), if it requires the relocation or undergrounding of telecommunication lines. The supreme court responded: The term "aerial supporting structures" refers to poles and pole-like structures. RCW 35.99.060(3)(b) requires a city to reimburse a service provider for an aerial to underground relocation of its facilities when the service provider owns a portion of the aerial supporting structures as defined above. The amount the city is required to reimburse the service provider is the difference between an estimated aerial to aerial relocation and the actual aerial to underground relocation of the same facilities.
Lewis County v. Western Washington Growth Management Hearings Board, 157 Wn. 2d. 488 (8/10/2006) [Planning/ ] In determining whether the county had adequately designated agricultural land, the court provided the following definition of agricultural land: "Agricultural land is land: (a) not already characterized by urban growth (b) that is primarily devoted to the commercial production of agricultural products enumerated in RCW 36.70A.030(2), including land in areas used or capable of being used for production based on land characteristics, and (c) that has long-term commercial significance for agricultural production, as indicated by soil, growing capacity, productivity, and whether it is near population areas or
vulnerable to more intense uses." The court also added that counties may consider the development-related factors enumerated in WAC 365--190-050(1) in determining which lands have long-term commercial significance. The court further found that it was not "clearly erroneous" for the county to weigh the industry's anticipated land needs above all else. The court further found that it was clearly erroneous for the county to exclude from designated agricultural lands up to five acres on every farm (for farm centers and farm homes), without regard to soil, productivity or other specified factors in each farm area. The court upheld a decision by the hearings board that county development regulations allowing certain non-farm uses of agricultural lands failed to comply with the GMA requirement to conserve designated agricultural lands.
Lewis v. Department. of Licensing 157 Wn. 2d 446, (8/3/2006) [Public safety/recording of traffic stop] If a police officer stops a person for a traffic violation and, as a result, he or she records the suspect with a video or audio taping system, the conversation that ensues is not deemed to be private. However, the officer is required to tell the suspect that a recording is being made (it is not necessary to tell the person that a video recording is being made). Failure to give such a warning results in the exclusion of the recording from use in the court proceedings.
City of Sequim v. Paul Malkasian, 157 Wn. 2d 251, (7/13/2006) [Power of initiative] The city issued revenue bonds pursuant to RCW 35.41. The issuance was challenged by initiative. The city sought judicial review, arguing that the bond issuance was beyond the authority of an initiative. The court disagreed, the election was held, and the initiative was approved. The city appealed and the court agreed with the city. The court concluded that the issue was not moot, even though the initiative election was over. It also concluded that the authority to issue revenue bonds under RCW 35.41 was given to the city legislative body, rather than to the city, and thus was beyond the power of initiative review.
McClarty v. Totem Electric, International Brotherhood of Electrical Workers Local 76, 157 Wn. 2d 446 (7/6/2006) [Discrimination in employment] The court provided the following definition for the term “disability:” To provide for a single definition of "disability" that can be applied consistently throughout the WLAD, we adopt the definition of disability as set forth in the federal Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. secs. 12101-12209. We hold that a plaintiff bringing suit under the WLAD establishes that he has a disability if he has (1) a physical or mental impairment that substantially limits one or more of his major life activities, (2) a record of such an impairment, or (3) is regarded as having such an impairment.
Preserve Our Islands v. Shoreline Hearing Board, 133 Wn. App. 503 (6/19/2006) [Shoreline development permit] An appeal the Shorelines Hearings Board's order requiring the County to issue shoreline substantial development and conditional use permits for a proposed barge-loading facility. The facility will allow the transport large quantities of sand and gravel off an island. The court concluded that the County had zoned the site for commercial mining and designated it as mineral resource land under the Growth Management Act without any restrictions on the size of the use. The current principal use of the site is a commercially significant mining operation, regardless of how it was used in the past. The mine is located on a small island without viable large-scale ground transportation options and cannot operate consistent with its designated principal use without barging. The barge-loading facility is thus an integral part of the principal use, and the entire facility must use the shorelines to operate consistent with its County zoning. The Board and later the court concluded the barge-loading facility was water dependent and that substantial evidence supported the conclusion that the mitigation measures and conditions made the facility consistent with shoreline management policies.
Kevin Locke v. City of Seattle, 133 Wn. App. 696 (6/19/2006) [Damages associated with injury to firefighter during training] A firefighter trainee was injured during a training exercise. A jury found the city negligent and returned a substantial verdict in firefighter's favor. The city appealed, raising constitutional, statutory, evidentiary, instructional, and procedural issues. On appeal, the judgment was affirmed. The city was not entitled to sovereign immunity; if a government engages in tortuous conduct, it will be liable to the same extent as a private person. The title to the LEOFF statute under review was not unconstitutional, and the statute itself did not violate equal protection. The firefighter was a member of LEOFF, even though he was only a trainee at the time of his injury. The firefighter did not assume risk, as he did not have a reasonable opportunity to act differently (and maintain his job). Other procedural issues that were alleged were denied.
Peste v. Mason County, 133 Wn. App. 503 (6/14/2006) [Land use and zoning] An applicant challenged the county's denial of a rezone request, arguing that the county's comprehensive plan and zoning regulations were void because notice and public participation was inadequate; his substantive due process rights were violated; there was a regulatory taking; and because there was no substantial evidence to support the county's denial. The court affirmed the denial, finding that the appicant failed to challenge the notice and public participation provisions before the growth management hearings board, strict compliance was not required, and the challenge was not timely. The applicant failed to provide evidence that the county's regulations deprived him of all viable use of his property. While the record was limited, the court concluded that the county's designations were not duly oppressive. And the court found that there was substantial evidence in support of the board's decision.
Seattle Mortgage Company v. Unknown Heirs of Gray, 133 Wn. App. 479 (6/14/2006) [Survival of energy conservation loan lien after mortgage foreclosed] The city of Tacoma has granted energy conservation loans to its electricity customers. One customer, who had previously secured a conservation loan, died and when her note to a mortgage company was not paid, the mortgage company foreclosed. Tacoma argued that the foreclosure did not extinguish its lien; it argued that the city could withhold service until the loan was repaid. The trial court disagreed, concluding 1) the deed of trust had priority over Tacoma PUD's conservation lien; (2) foreclosure of the deed would extinguish Tacoma PUD's lien; and (3) the purchaser at the foreclosure sale would take the property free and clear of Tacoma PUD's interest. The decision was affirmed on appeal. The loan was consistent with the constitution; the PUD could seek repayment; requiring repayment, while consistent with the constitution, was not mandated (there was no gift); there is no statutory or implied authority allowing the city to refuse service following the foreclosure; traditional lien priority provisions apply; and justice did not require the finding of an equitable lien in the city’s favor.
Colby v. Yakima County, 133 Wn. App. 386 (6/7/2006) [County responsibility to defend former judge in disciplinary hearing] The plaintiff was formerly a district court judge. He resigned his position after reaching an agreement during a disciplinary action. As part of the agreement, the plaintiff admitted certain violations of the judicial code of conduct. Thereafter, the judge sought the payment of attorney fees by the county for his defense before the judicial disciplinary board. Pursuant to county policy, the prosecuting attorney made a review and determined that representation at public expense was not authorized, since the judge's actions were not made in good faith under the scope of his judicial duties. The judge sued. The court of appeals concluded that while RCW 4.96.041 might authorize a defense, that statute must be read in conjunction with a local provision that denies coverage if the acts alleged in the disciplinary proceedings amounted to official misconduct. The court further found that the judge was not entitled to a public defense under the county's insurance coverage as the proceedings were not one for damages arising from acts or omissions made while in good faith performing official duties. The disciplinary proceedings in question also differed from a previous disciplinary action against another county official where a defense was provided.
Wise v. City of Chelan, ___ Wn. App. ___ (5/30/2006) (Contract for judicial services) The city entered into a contract for judicial services from Ms. Wise for a four-year period. After two years, the city eliminated its municipal court. Ms. Wise sued under her contract for the compensation due her for the remaining two years. The court concluded that such a contract for services was consistent with and required by state law; the contract was not ultra vires. The contract was bilateral, and Ms. Wise was entitled to the compensation even though she no longer was performing services. Ms. Wise was also entitled to attorney fees.
Osborn v. Mason County, 157 Wn. 2d 18 (5/18/2006) [Duty to warn of sex offenders] Although requested to post fliers regarding the presence of a sex offender in the community, the county did not post fliers and the sex offender in question raped and murdered a person. The court concluded that the county did not, under the statute then applicable, owe a duty to the victim to warn her of the sex offender's presence. The county had not made assurances to the victim which would have made a duty to warn under the rescue doctrine. The victim had not relied on assurances made by the county to another member of the community. The county did not have a "take charge" duty over the sex offender because it had no authority to control him, and there was no "special relationship" duty to warn the victim as she was not a foreseeable victim. The rescue doctrine did not apply, since the victim to not rely on the county's assurances. The public duty doctrine did not apply since the county had no duty to warn the victim. The county did not have a legal duty to prevent every foreseeable injury.
Harvey v. Snohomish County, 157 Wn. 2d 33 (5/18/2006) [Potential liability related to dispatch of emergency personnel] The plaintiff Harvey sought damages for emotional distress when, he argued, the sheriff failed to rescue him, after his home was threatened by a disturbed individual and he had called for emergency assistance. In order to demonstrate that a duty has been created to respond to a 911 call for police assistance, a claimant must show that assurances were made to the detriment of the caller. The court's review of the record revealed that Harvey never received any assurance from the operator that was untruthful or inaccurate nor has he shown that he relied on any assurance to his detriment. Even if it were agreed to that express assurances had been made by the 911 operator, there was never any breach of duty. To the contrary, the court concluded, the emergency dispatch operator and the sheriff's office acted swiftly and effectively throughout the entire incident.
Cummins v. Lewis County, 156 Wn. 2d 844 (5/4/2006) [Public duty doctrine] Under the public duty doctrine, is an actionable "special relationship" created between a member of the public and a government entity when an individual places a "911 call," identifies the nature of his medical emergency, provides a street address but not his name, and "hangs up" prior to either requesting help or receiving an oral assurance from the operator that medical aid will be dispatched. The court answered "no" to that question, concluding that there is neither a statutory nor a common law duty on the part of a county to dispatch medical aid under such circumstances. The court declined the petitioner's invitation to eliminate the express assurance requirement of the special relationship inquiry in cases involving 911 calls and medical emergencies.
State v. Potter, 156 Wn. 2d 835 (4/27/2006) [Search after arrest] The defendant was arrested for DWLS and, as result of the arrest, searched. During the search drugs were found. The defendant's license had been suspended administratively by a process later found unconstitutional in Redmond v. Moore, 151 Wn.2d 664, 91 P.3d 875 (2004). (The Moore decision came after the defendant's arrest and search.) The trial court suppressed the drugs, citing the Moore decision. The court of appeals, however, reversed the trial court, and the supreme court affirms the court of appeals decision. A valid search incident to arrest requires that police make an arrest that is supported by probable cause to believe an individual has committed a crime. Probable cause is determined at the time of arrest. Since reliable information from the DOL indicated the defendant was committing the crime of DWLS in the third degree, officers had probable cause to arrest him.
Stiefel v. City of Kent, 132 Wn. App. 523 (4/25/2006) [Application of public duty doctrine to fire service] Plaintiff's home was damaged after fire hydrant became clogged by sediment. The court held that the provision of fire protection services is a governmental rather than a propriety function. The public duty doctrine therefore bars any claims for the negligent failure to supply water for firefighting purposes or the negligent failure to enforce fire code provisions.
Cary v. Mason County,132 Wn. App. 495 (4/18/2006) [Time limit for challenge of special assessment] In September 2003 the county adopted a conservation special assessment ordinance pursuant to RCW 89.08.400. The plaintiff, Cary, filed a declaratory judgment action against the county in March 2003, alleging that the assessment was an unconstitutional property tax. The trial court ruled that the action was time-barred, as it had not been filed within a reasonable time, which the court concluded was 30 days. The Court of Appeals disagreed, holding that the action was analogous to actions to recover any tax levied or assessed under RCW 84.68.060, and that such actions must be commenced by June 30 of the year following the year the tax became payable. The appeals court thus concluded the appeal was timely and remanded the case for a decision on its merits.
Northwest Pipeline v. Adams County, 132 Wn. App. 470 (4/13/2006) [Taxation/valuation of property] The court upheld the valuation of property for tax purposes prepared by the state department of revenue. The valuation was based upon income and cost approaches. The two percent growth assumption was justified, and the depreciation considered was consistent with the company's own procedures used for federal regulatory purposes.
In re Recall of Robinson, 156 Wn. 2d 704 (4/6/2006) [Recall] A recall petition was brought against a mayor who had delayed signing two contracts approved by the city council and who had requested that the contracts be changed after council approval. The court held that the allegations were not legally sufficient to support a recall; the court found that the mayor's actions were within his discretion. It was not shown that the mayor had a duty to sign the contracts within a specific period of time. Also, the mayor's assistance in drafting the contracts was a reasonable exercise of his mayoral discretion and was within his broad statutory authority under RCW 35A.12.100. Statutory duties require the mayor to "see that all contracts and agreements made with the city or for its use and benefit are faithfully kept and performed." RCW 35A.12.100.
Kempter v. City of Soap Lake, 132 Wn. App. 155 (3/21/2006) [Liability for sewer backflow] The Kempter’s home was damaged by the backflow of sewage. The city sewer line had been inspected and was found to be working properly six days before the backflow occurred. Although initially the plaintiffs sought damages for negligence, on appeal they sought damages because the city had exclusive control over the sewer system, and because city residents were required to be connected to the system. The court disagreed. The plaintiffs failed to show duty, a breach of that duty, or that the injury was proximately caused by the breach. No evidence was presented that the sewer line was defective or that it had been improperly maintained. Essentially the plaintiffs’ argument was that the city was liable under the doctrine of res ipsa loquitur. However, it was not at all certain that it was the City's negligence that caused the obstruction. Also, the Kempters failed to establish that the City had exclusive control over the sewer and the obstruction that caused the damage.
Cingular Wireless v. Thurston County, 131Wn. App. 756 (2/28/2006) [Land use/denial of special use] Cingular sought to construct a cellular antenna structure in a rural residential area. The hearing examiner denied the application, citing, among other things, the incompatibility of the antenna with general standards set out in the county’s comprehensive plan, even though the project was consistent with specific design standards set out in the county’s zoning code. Cingular appealed. The court concluded that Cingular needed to satisfy both the general and specific requirements. The zoning code required compliance with the comprehensive plan, and the specific requirements were consistent with the general requirements. The proposed use was inconsistent with the general requirements in the comprehensive plans policies. The hearing examiner did not erroneously consider the availability of other cellular service in the area; that consideration helped determine whether the denial would create an undue adverse effect. The fact that there was significant public objection to the proposal did not affect the examiner’s decision, which was based upon specific adverse impacts.
Central Puget Sound Regional Transit Authority v. Miller, 156 Wn. 2d 403 (2/16/2006) [Condemnation/required notice of preliminary agenda] Transit board's listing of its agenda on its website provided sufficient notice to the public. Personal notice was not required at this preliminary stage (determining whether the condemnation was necessary) and notice was not required to be published in a newspaper. Website posting satisfied notice requirements of RCW 35.22.288. Four justices dissented.
Sprint Spectrum v. City of Seattle, 131 Wn. App. 339 (1/30/2006) [Application of business utility tax] The Court concluded that, under the city's definition of "gross income" ("the value proceeding or accruing from the sale of tangible property or service), and receipts (including all sums earned or charged, whether received or not), the amount charged customers by Sprint for the city utility tax must be included in the calculation of Sprint's gross income for determining the amount of tax owed.
Mansour v. King County, 131 Wn. App. 255 (1/23/2006) [Enforcement of animal control provision] A dog, believed to have severely bitten a neighbor's cat, was ordered removed from the county. The dog's owner challenged the decision on due process grounds. On appeal, the court ordered a new hearing, concluding that :1) the burden of proof on the county was to
prove both the violation and the remedy (removal) it has imposed by a preponderance of evidence; 2) the owner must be allowed to subpoena witnesses and records; and 3) the notice provided the owner must correctly set out the authority under which the removal action is taken and what must be proved at the hearing on the appeal.
State v. O'Brien, 131 Wn. App. 1015 (1/23/2006) [Search following arrest for DWS where suspension later found unconstitutional] The state appealed the court's suppression of evidence discovered after the defendants were arrested for driving while their license was suspended (a suspension later found to be unconstitutional by Redmond v. Moore, 151 Wn. 2d 664 (2004). On appeal, the court reversed the trial court and returned the cases for trial, concluding that police are not required to determine whether the Department of Licensing provided due process in the course of a license suspension before arresting a driver for driving while license suspended in the third degree based on probable cause or a valid arrest warrant.
City of Olympia v. Drebick, 156 Wn. 2d 289, (1/19/2006) [Calculation of development fees under GMA] The Supreme Court upheld the city's calculation of transportation impact fees imposed under GMA, reversing a decision by the Court of Appeals (119 Wn. App. 774 (2004)). The GMA impact fee statutes permit local governments to base impact fees on area-wide infrastructure improvements reasonably related and beneficial to the particular development seeking approval. This standard is broader than the standard under SEPA or the Local Transportation Act. The City was not required to calculate the impact fee by making individualized assessments of the Drebick development's direct impact on each improvement planned in a service area. The City's method of calculating transportation impact fees complied with the plain language of the GMA impact fee statutes.
Coalition for a New Spokane v. Vicki Dalton, 156 Wn. 2d 244 (1/12/2006) [Recall of officer] The Supreme Court upheld the decision of the Superior Court that there were sufficient grounds to proceed with the recall of Spokane Mayor James West in a decision given on August 24, 2005. Thereafter petitions were gathered which later were determined sufficient to require a recall election of the mayor. The Coalition argues that the petition signatures cannot be gathered until after the Supreme Court' written opinion is filed; accordingly, the Coalition argues, the petitions submitted before the written opinion are invalid. The Supreme Court disagreed, finding that, for purposes of the state election laws, its decision on the grounds for recall was made when it issued its order August 24 affirming the superior Court decision.
2005
City of Olympia v. Thurston County Board of Commissioners, 131 Wn. App. 85 (12/28/2005), [Land use/appeal of litigation requirements] As part of its SEPA review, the County issued a MDNS, conditioned on, among other things, payment of park fees to the city of Olympia. The project applicant ultimately appealed to the Board of Commissioners; Olympia argued that the appeal should be made to the courts. On appeal, the Court of Appeals agreed that the conditions attached to the MDNS became conditions for the substantive permit request, which was appealable to the commissioners.
Okeson v. City of Seattle, 130 Wn. App. 814 (12/19/2005) [Expenditure of utility funds for art projects] This is a challenge to the city's "One Percent for the Arts" program which requires that one percent of the cost of capital construction projects be devoted to the support of the arts. Here the petitioners alleged that monies generated from City Light capital projects were being improperly used for arts projects undertaken for the benefit of the general public. The trial court and court of appeals agreed. The court held that utility monies may only be used for projects having a sufficiently close nexus to the purpose of providing electricity to the public. Those art projects relating to the renovation of City Light facilities or for use in City Light offices had a sufficient nexus; others, such as the placement of art in other offices or the promotion of community relations between the utility and the public, did not.
Chevron v. Central Puget Sound Growth Management Hearings Board, 156 Wn. 2d 131 (12/15/2005) [Notice required for adding potential annexation area in comprehensive plan] The city of Woodway sought to add property owned by Chevron, located outside the city's limits, into its urban growth area. Published notice was given before the city considered amendments to its comprehensive plan, which included the potential for annexing the Chevron land. Chevron appealed, among other things, whether the published notice was adequate or whether individualized notice should have been given. The court, upholding earlier decisions, concluded that the potential for annexation did not actually and significantly affect Chevron's property rights. The property was not actually annexed into the city; Chevron would need to consent to the annexation. There was not an actual effect on the property, due process was not violated, and the published notice was sufficient.
Advanced Silicon Materials v. Grant County, 156 Wn. 2d 84 (12/8/2005) [Valuation of property for tax assessment purposes] Grant County values property on a four-year cycle. The taxpayer’s (ASiMI) property was valued in 1999. ASiMI challenged its tax assessment in 2001, arguing that the property should have been valued as of January 1, 2001, rather than using the 1999 valuation. The superior court agreed and the issue was appealed to the Supreme Court. The Supreme Court reversed the superior court decision, holding that there was no authority allowing a taxpayers to challenge its mid-cycle assessments based on the true and fair value of their property as of January 1 of every year that the value of their property declines since it was last revalued. The statutes do not require assessments be based on the true and fair value of property as of January 1 of each assessment year. The statutes do not even provide a basis for taxpayers to challenge their annual assessments. ASiMI's statutory interpretations were unreasonable because they did not properly examine them in conjunction with related statutes.
City of Des Moines v. Gray Businesses, 130 Wn. App. 600 (12/05/2005) [Nonconforming uses; takings vs. regulations] Gray Businesses (Gray) owned a mobile home park. When the park was annexed into the city, it became nonconforming. Subsequently, the city enacted an ordinance requiring that the owners of nonconforming uses of land file a plan or schematic drawing in order to continue as a nonconforming use. Gray failed to file the required plan and, approximately eight years later, the city discovered Gray's failure to file and notified it that the use was no longer allowable. Gray sued, alleging that the city had made a taking of its property. Although the trial court agreed with Gray, the court of appeals, in a split decision, held that the city's ordinance was a valid regulation, not a taking. Because the site plan regulation was a valid exercise of the City's
police power, and the City's application of the site plan regulation did not destroy or derogate a fundamental attribute of Gray's ownership, there was no regulatory taking.
Woods v. Kittitas County, 130 Wn. App. 573 (11/30/2005) [Rezones/GMA] Woods challenged the county's approval of a rezone request that changed the zoning for an area from forest/range land to rural 3, allowing more density. The superior court overturned the county commissioners' approval of the rezone. On appeal, the appellate court explained that a court, under LUPA, only has jurisdiction to consider whether a zone change is consistent with the comprehensive plan; it may not consider whether a proposed action is consistent with GMA, as that is a subject for the Growth Management Hearing Boards to determine. The appellate court concluded that the superior court had jurisdiction to consider the elements of the appeal dealing with compliance with the comprehensive plan. The court further concluded that the proposed rezone would help reduce "rural sprawl" and was thus consistent with the county's comprehensive plan. A finding that the rezone had a substantial relationship to public health, safety or welfare was not "clearly a mistake." Finally, the court concluded that sufficient evidence supported the conclusion that most of the property subject to the rezone was suitable for development and, in any case, the county's decision was not clearly erroneous.
Ferry County v. Concerned Friends, 155 Wn. 2d 824 (11/17/2005) [Growth Management Act/best available science] County's listing of endangered, threatened, or sensitive species did not comply with the Growth Management Act because it failed to use best available science. An expert's report based entirely on a general treatise and a conversation with a state biologist, unsupported by field observations, consultations with interested experts and other reasoned analysis is not "best available science." The Court, in upholding the court of appeals and the hearings board, found that the county's listing of endangered species lacked scientific basis and thus was not consistent with best available science, regardless how that term was then defined. In addition, the county failed to evaluate the information it did have.
Lathrop v. State Energy Facility Site Evaluation Council, 130 Wn. App. 147 (10/27/2005) [Appeal of energy facility site certification] RCW 80.50.140 vests authority solely in the Thurston County Superior Court to decide petitions for review of the governor's final decision in a consolidated proceeding to conduct needed fact-finding, and upon certain conditions, to certify the petition to the Supreme Court.
Reeves v. City of Wenatchee, 130 Wn. App.153 (10/27/2005) [LUPA/failure to note] Mr. Reeves was sanctioned for the keeping of junked vehicles and other debris and for improper use of property. He appealed to superior court but failed to note an initial hearing on jurisdictional and preliminary matters within seven days, as required by RCW 36.70C.080(1). The court dismissed his appeal for failure to timely note the hearing. On appeal to the court of appeals, the court, citing two recent decisions, held that the RCW 36.70C.080 (1), while mandatory, is procedural, not jurisdictional.
In Re: Recall of James West, 155 Wn. 2d 659 (10/26/2005) [Recall charges] The Court upheld the decision by a superior court judge that allegations that the mayor had used his influence in the appointment of an intern for personal reasons, not associated with the operation of his office, and that such allegations, if believed, were factually (they contained sufficient detail) and legally (they allege substantial conduct clearly amounting to misfeasance) sufficient to support recall. The Court also upheld the corrections made by the superior court judge to the ballot synopsis which “fleshed out” the factual basis for the recall; such corrections are/were within the judge’s authority.
Protect the Peninsula's Future v. Clallam County, 130 Wn. App. 127 (10/25/2005) [Growth Management] The court reversed a superior court appeal of a growth management hearing board (the “Board”) decision, concluding that that the Board correctly ruled that preexisting agricultural uses are not exempt from all critical areas regulation. The court also held that the county was not limited to exempting only designated agricultural resource land from full critical areas regulation and that it may expand its exempt agricultural land to meet its local conditions. However, the county must balance such expanded exemption with corresponding restrictions that take into account the specific harms threatened by the expanded class of farm lands.
In re Petition of the Seattle Popular Monorail Authority, 155 Wn. 2d 612 (10/20/2005) [Condemnation authority] A city transportation authority, created pursuant to chapter 35.95A RCW, possesses the power of eminent domain, as that power may be inferred from its authorizing statute and from other statutes. Although the authorizing statute does not specify what procedures must be followed for condemnation, by implication, the procedures applicable to cities, chapter 8.12 RCW, should be followed. The determination of necessity by a municipal body is conclusive, absent fraud or arbitrary and capricious conduct. The courts give deference to the legislative body’s determination of necessity. The determination of what property interest should be acquired is a legislative decision.
Doty v. Town of South Prairie, 155 Wn.2d. 527, (10/6/2005) [Industrial insurance/volunteer firefighters] Doty was a volunteer firefighter for South Prairie. She was paid a stipend for each call out and for drills. She was also covered by Volunteer Fire Fighters and Reserve Officers Relief and Pension Act. Ms. Doty was injured on the job. She sued the town for negligence. The town argued that Ms. Doty was an employee, was covered by industrial insurance, which provided her with the exclusive means for relief. The Supreme Court agreed with the Court of Appeals and hold that the industrial insurance does not cover nonemployee volunteers, Ms. Doty was a volunteer, and she was not barred from filing a civil suit. The fact that she received a stipend and was potentially eligible for pension benefits did not make her an employee.
Bellevue John Does 1-11 vs. Bellevue School District #405, 129 Wn. App. 832, (10/3/2005) [Public disclosure] A newspaper sought school district investigative records concerning teachers, including the names of the teachers, alleged to have committed inappropriate conduct of a sexual nature, regardless whether, after investigation, that conduct was substantiated or not. Following notification, 37 teachers, for whom district investigations proved the alleged conduct unsubstantiated, sought protective orders, seeking to prohibit disclosure of the records and their names as an invasion of privacy. The court concluded that the name of a teacher who has been the target of an unsubstantiated allegation of sexual misconduct one that is not patently false is subject to public disclosure. When an allegation against a teacher is plainly false, as shown by an adequate investigation, that teacher's name is not a matter of legitimate public concern. Investigative files with identifying information redacted will always be subject to disclosure. Although the newspaper prevailed in the release of some records, attorney fees were not awarded, as the paper prevailed against the action of the teachers, who had obtained protective orders, not the district. (Reversed in part by Supreme Court on 7/31/2008)
Habitat Watch v. Skagit County, 155 Wn. 2d 397 (9/22/2005) [LUPA] The county issued a special use permit for the construction of a golf course; the permit was good for two years. When construction had not commenced within the period, the applicant (or its successor) applied for a two-year extension and, later, another extension. While extensions required the giving of notice and the holding of a hearing, those steps were not followed. The plaintiff did not learn of the extensions until making a public disclosure request, after seeing initial project construction. Thereafter, more than 21 days following receipt of the records, the plaintiff sought relief from the court, asking for invalidation of the two permit extensions, revocation of a grading permit that had subsequently been issued, and a reversal of an administrative decision that had been made to not revoke the permit. Even though the two extensions were granted without the required notice and hearing, the court declined to invalidate the extensions because the 21-day appeal period required by LUPA had not been met. Repeal of the grading permit was not allowed, as it was based upon a collateral attack to the initial grant of the special use permit (which was now time barred). The call to revoke the permit was based upon inconsistencies within the extension and on whether the project had been commenced in a timely fashion. The court gave deference to the administrative decision that commencement of the project had been timely and declined to revoke the permit, based upon inconsistencies in the extension, as that was now time barred.
Nagle v. Snohomish County, 129 Wn. App. 703 (9/20/2005) [Illegal subdivision of property/innocent purchaser] An innocent purchaser for value without actual notice of an illegal subdivision of property is one who has given valuable consideration without express knowledge of the subdivision of the property. In this proceeding, the plaintiff failed in his burden to show that he is entitled to relief under LUPA. Specifically, the county’s land use decision that the plaintiff was not entitled to innocent purchaser status for property he purchased because he had 'actual notice' that the property was illegally subdivided. The plaintiff had purchased the property in question from a large parcel owned by his parents; the property had not been subdivided at the time of the purchase.
Callfas v. City of Seattle, 129 Wn. App. 579 (9/16/2005) [Delay in issuance of permit] The plaintiff applied for a master use permit in 1999. After various delays, no permit was forthcoming, and the plaintiff filed a claim for damages in 2002. (The permit was issued in 2003.) The claim was denied and the plaintiff filed suit alleging, among other things, a violation of chapter 64.40 RCW. The court concluded that, unless the municipality has either refused to accept or make a final decision on the application, or it has exceeded the legal time limit for the processing of the application, action is not allowed under RCW 64.40. Since, at the time the suit was filed, the city had not denied the application, and the plaintiff did not allege that any time limit had been exceeded, the action failed.
Matia Investment Fund Inc v. City of Tacoma, 129 Wn. App. 541 (9/13/2005) [Notice of appearance in lawsuit] The plaintiff filed a claim against the city. The city attorney wrote to the plaintiff, denying the claim. The plaintiff thereafter filed suit against the city. The city attorney’s office was not notified of the lawsuit and thus did not appear. The plaintiff received a default judgment against the city, since the city attorney neither appeared nor replied to the lawsuit. The court, however, found that, by the city attorney’s letter denying the claim, the city had informally appeared and thus was entitled to notice of the default motion. The court vacated the default judgment.
Tiffany Family Trust Corporation v. City of Kent, 155 Wn.2d. 225 (9/8/2005) [Challenge to LID assessment] In 1986 the plaintiff Tiffany sought and was granted a conditional use permit. To mitigate the impacts of its proposal, Tiffany agreed to participate in and not object to the formation of a local improvement district (LID) for road improvements. The LID was formed in 1998, and Tiffany’s share was determined to be $364,939, over 10 times greater than the original estimate. Although the city sent notices to Tiffany, they apparently were not received and Tiffany failed to challenge its assessment in a timely fashion and the city council confirmed the assessment roll. Thereafter, Tiffany sued, alleging an unconstitutional taking and a violation of due process. Ultimately, the Court rejected Tiffany’s claims, finding that Tiffany was procedurally barred from raising its claims, and that its claims could not be brought collaterally if the statutory procedures were not utilized (and as long as those procedures satisfy due process requirements). The Court concluded that the city’s exaction was pursuant to an LID, rather than as a mitigation payment. Whenever any assessment roll for local improvements has been confirmed by the council, the regularity, validity, and correctness of the proceedings relating to the improvement and assessment, including the action of the council upon the assessment roll and the confirmation thereof, shall be conclusive in all things upon all parties. They cannot in any manner be contested or questioned in any proceeding by any person unless he filed written objections to the assessment roll in the manner and within the time required by the provisions of this chapter and unless he prosecutes his appeal in the manner and within the time required by the provisions of this chapter. Challenges to the amount of the assessment are not jurisdictional. Since the assessments were conclusively correct, takings and due process challenges, based upon the amount of the assessments must fail.
Paxton, Crozier and Williams v City of Bellingham, 129 Wn. App. 439 (9/6/2005) [Initiative signatures] For determining whether there are sufficient signatures to qualify an initiative for inclusion on a (city) ballot, the rules set out in chapter 35.21 RCW apply, not those set out in Title 29A RCW. Under rules applicable to cities, signatures on an initiative petition cease to be valid after six months. Equitable estoppel is not available where there has been misrepresentation of law rather than fact.
State v. Tinker, 155 Wn. 2d 219, (9/1/2005) [Third degree theft] The charging document charging the defendant with third degree theft did not specify the value of the property alleged to have been stolen. Based upon this omission, the defendant challenged his conviction. The Court held that value is not an element of third degree theft.
Conom v. Snohomish County, 155 Wn. 2d. 154, (8/25/2005) [LUPA] In a challenge to a land use action under LUPA, a party's failure to note an initial hearing within seven days of serving a land use petition, as required under RCW 36.70C.080(1), does not divest a superior court of jurisdiction to hear a land use petition.
Viking Properties v. Holm, 155 Wn.2d 112 (2005) [Planning/authority of Growth Management Hearings Boards] Purchaser of real property (Viking) sought to invalidate a covenant that established a requirement for white residents only and established density limits on development. The trial court invalidated the covenant as a whole, concluding that the racial restriction was unenforceable and that the density restriction violated the policies of the Growth Management Act. The Court concluded that the racial restriction portion of the covenant was several from the covenant and could be removed without invalidating the entire covenant. The covenant’s density provisions did not necessarily violate growth management policies and, in fact, were supportive of some. Is there a “bright line” as to density (four dwellings per acre), established by the growth management hearings boards, that must be followed? No. The hearings boards have no authority to make public policy; they are quasi-judicial agencies with restricted powers. The density restriction did not violate public policy. Viking’s substantive due process rights were not violated; enforcement of the density limitations would not deny reasonable use of the property nor be unduly oppressive.
City of Bremerton v. Hawkins, 155 Wn.2d 107 (8/11/2005) [DWS/automatic suspension based on drug conviction] Minor's license to drive was suspended automatically due to conviction on drug offense. The court concluded that the defendant' due process protections were satisfied when the mandatory license suspension was based on a final criminal conviction. Although the defendant has a substantial private interest in his driver's license, a final conviction makes erroneous deprivation unlikely, since the defendant is sentenced in person before a judge. There is a significant government interest in the license revocation of convicted criminals. No additional administrative hearing is required.
City of Redmond v. Bagby, 155 Wn. 2d 59 (8/11/2005) [Automatic suspension of a driver's license] The likelihood of erroneous deprivation does not exist when a judge suspends a license following the person's conviction of certain offenses, such as vehicular homicide and reckless driving, where there is an automatic suspension or revocation required by law. Defendants are required to personally appear in criminal proceedings. They are afforded all constitutional protections in those proceedings, including the right to appeal. No separate administrative hearing is required to suspend the person's license.
Snohomish Fire Protection District No. 1 v. Boundary Review Board, 155 Wn. 2d 70 (8/11/2005) [Filing annexation proposal with boundary review board] Which event in the direct petition method of annexation triggers the 180-day period during which 'the initiators' of an annexation must file a 'notice of intention' with the boundary review board pursuant to RCW 36.93.090(1). The Court holds that notification of the boundary review board must occur within 180 days of the filing of an annexation petition signed by owners of at least 75 percent of the assessed value of the property to be annexed with the city.
Spokane Research & Defense v. City of Spokane, 155 Wn. 2d 89 (8/11/2005) [Public disclosure of records] Prejudgment disclosure of records does not moot the later review and award of penalties, if records had been improperly withheld at the outset. The merits of a claim for fees and penalties are based on the circumstances that existed at the time of the records request, which is not changed by subsequent disclosure of documents. It is not necessary that the person who made the initial records request be the one who caused the ultimate disclosure of the records in order to be the prevailing party for purposes of collecting a penalty for the improper denial of the records. A show cause order is optional, not mandatory, for entitlement to fees and penalties. Summary judgment may be used for the pursuit of a public records request/claim.
Andrus v. Dept. of Transportation, City of Olympia, 128 Wn. App. 895 (8/9/2005) [Termination of "employment"] City's withdrawal of job offer, day after job was offered but before job particulars (salary, starting date, etc.) were determined, and offer submitted in writing, and before formal acceptance, did not amount to a wrongful termination. In any case, since the person would have been "at will," he could have been terminated anyway. Andrus suggested that he might be entitled to reliance damages; however, an employee who is lawfully fired from an at-will position has no recourse against the employer. In any case, the plaintiff presented no evidence of reliance damages, e.g., moving expenses or a change in his current job status, which may have occurred in the one day he believed he was employed by the City.
State v. Holmes, 129 Wn. App. 24 (8/8/2005) [Search following arrest for driving while license suspended] The defendant was stopped for having a defective taillight. A records check indicated that he had a suspended license, an offense for which the defendant was arrested. Thereafter illegal drugs were found in the vehicle. Did the case Redmond v. Moore require the suppression of the drug evidence? No. There was legal authority for both the arrest and the search; since the search was valid, the fruits of the search were admissible. The fact that the license suspension process was found unconstitutional under Moore did not make the offense itself unconstitutional.
King's Way Foursquare Church v. Clallam County, 128 Wn. App. 687 (8/3/2005) [LUPA appeal/initial hearing] Date land use decision is set out in writing is date of decision for purpose of starting appeal period, not day oral decision is announced. Petitioner’s failure to note initial meeting within seven days of LUPA appeal did not deprive court of jurisdiction to consider appeal; sanction, however, could be assessed for the delay. Appeal was not res judicata and petitioner was not estopped from pursuing appeal.
Frese v. Snohomish County, 129 Wn. App. 661 (8/1/2005) [Paid meal breaks/need for extra compensation] The County agreed in a collective bargaining agreement to pay certain employees (correction officers) for eight hours of work on a shift, including a 30-minute meal period, if the employees remained “on call” during the meal period. The employees sued for additional compensation, claiming that the labor agreement was violated because they routinely were required to work through the meal period without an opportunity to sit down and eat. The court, citing an earlier holding, noted that the employees’ obligation to remain on the premises and be on call during lunch did not, by itself, entitle them to additional compensation, as they were already being paid. However, the real dispute was whether the duties the employees were called upon to perform during the meal period went beyond what the agreement contemplated for “on call” status. For this issue, the record was not sufficiently developed and a motion for a summary judgment was properly denied.
City of Walla Walla v. Greene, 154 Wn.2d 722 (7/28/2005) [DUI] The defendant was charged with DUI in 2000; she pled guilty to negligent operation. In 2004 she was charged and convicted of DUI. Since every element of the 2000 charge was not proved, may that conviction be used to enhance the punishment for the 2004 conviction, that is, is the 2004 conviction the second conviction for an alcohol-related offense? The Court held that it was. The statute requires the state to establish that a prior driving conviction involved use of intoxicating liquor or drugs. Due process is satisfied for the purposes of the mandatory enhancement if the prior conviction exists and the prosecution can establish that intoxicating liquor or drugs were involved in that prior offense.
Bosteder v. City of Renton, 155 Wn.2d 18 (7/28/2005) [Administrative search warrant/1983 action/claims statute] Pursuant to an administrative search warrant, a search was made of an apartment building. Plaintiff/building owner alleged that the search warrant was invalid, thus the search was invalid; his Fourth Amendment rights were violated; the inspectors had trespassed; and he suffered damages compensable under a sec. 1983 action. The Court held that the issuance of administrative search warrant was not authorized by either statute or court rule and thus was invalid at the outset. Accordingly, the search was invalid and unreasonable under the Fourth Amendment. The plaintiff sued both the city and, individually, those who conducted the search. Since there may have been a belief that the search was not prohibited under the Fourth Amendment, the Court held that the individuals had qualified immunity under sec. 1983. The Court remanded the case to determine whether the city was liable under the sec. 1983 claim (did the city's policies and persuasive customs cause the violation of the plaintiff's rights?) The Court held that the city claims statute, RCW 4.96.020(4), applied against individual defendants and, without the proper filing of claims against the individuals, the Court upheld the dismissal of trespass action against them The trespass claim against the city failed, as plaintiff failed to properly file claim.
Sleasman v. City of Lacey, 128 Wn. App. 617 (7/26/2005) [LUPA/tree removal ordinance] The court concluded that the plaintiff's failure to note the initial meeting under LUPA within time limits, within seven days following service, was procedural, rather than jurisdictional, and that there were other sanctions that could be employed other than dismissal of appeal. Court concluded that plaintiff's property was "partially developed," and thus subject to tree removal ordinance's application. The ordinance was not vague, and plaintiff's actions fell under the clear application of the ordinance (which required, in certain circumstances, that a permit be obtained before trees could be removed). Ordinance deemed civil and remedial, rather than criminal, and therefore rule of lenity for purposes of interpretation does not apply. Certain exceptions to ordinance's application either did not apply or were not proved.
White v. Township of Winthrop, 128 Wn. App. 588 (7/26/2005) [Disclosure of health information/violation of right to privacy] Mayor disclosed health information to newspaper. Court rejected argument that disclosure represented disability discrimination under RCW 49.60.180(4) (there was no "colorable action" under the act). However, the disclosure may have violated the plaintiff's common law right to privacy, if the disclosure was of a kind that would be highly offensive to a reasonable person, and is not of legitimate concern to the public. A jury should decide whether disclosure violated plaintiff's right to privacy.
Snohomish County Fire District No. 1 v. Snohomish County Disability Board, 128 Wn. App. 418 (7/18/2005) [LEOFF-I disability responsibilities] Are LEOFF-I retirees entitled to medical reimbursements for preventative dental services, such as annual examinations and dental cleanings? The county disability board decided that such reimbursements were for necessary medical expenses, and the court agreed. RCW 41.26.150(b) gives the disability board discretion to determine what expenses are reimbursable. The Board researched the issue of preventative dental services and determined that spending money on preventative services would prevent unnecessary future medical expenses, thus, concluding that preventative dental expenses are necessary medical expenses under the statute. This is a reasonable interpretation of the term 'necessary medical expenses, the court found. Therefore, the disability board did not abuse its discretion in determining that annual dental examinations and cleanings are medically necessary within the meaning of the statute.
James v. Kitsap County, 154 Wn.2d 574 (7/7/2005) [Appeal of impact fees/LUPA] The county, pursuant to the Growth Management Act (GMA), imposed impact fees, to be collected at the time of applying for a building permit. The county's comprehensive plan, however, was found noncompliant with GMA. Developers sought refund of impact fees collected during the period of noncompliance. While the superior court ruled in favor of the developers, the supreme court reversed, concluding that the impact fees were land use actions subject to LUPA and that act's requirement that challenges be brought within 21 days of the land use decision. Since payment of the impact fees was not made under protest and nearly three years had elapsed after the impact fees were imposed, the plaintiff developer's lawsuit was barred under LUPA's 21-day appeal rule.
Recall of Cynthia Olsen, 154 Wn. 2d 606 (7/7/2005) [Conflict of interest] Ms. Olsen was a port commissioner. A group of citizens sued the port and its commissioners for allegedly violating the Open Public Meetings Act. The port commissioners considered (and approved) a proposal to provide legal representation and indemnification for its commissioners against the lawsuit; Ms. Olsen participated in the vote. A recall petition was filed against Ms. Olsen, alleging that she had violated the state conflict of interest laws (RCW 42.23.030) when she voted to provide for legal representation and indemnification. The court found no violation of the state law, since provision of legal representation was specifically allowed by state law and the potential indemnification did not involve a contract.
Harrington v. Spokane County, 128 Wn. App. 202 (6/23/2005) [LUPA/failure to pursue administrative remedies] Harrington challenged county's failure to grant a permit for an installation of a septic system for residential structure being built near lake. While the plaintiff disagreed with the county's actions, he submitted an alternative plan that was approved. Thereafter he sued the county under a LUPA petition. Court upheld trial court's dismissal of action, concluding that the plaintiff did not seek administrative review and thus was precluded from his appeal. The plaintiff raised constitutional arguments and indicated that such arguments could not have been decided by an administrative panel. The court noted, however, that constitutional challenge was not facial, but instead as it applied to him. The court concluded that without first pursuing administrative remedies, the constitutional arguments were not ripe for review. The appeal was also denied based upon its untimeliness. The plaintiff did not appeal the initial negative actions by the county (denying the initial permit, not making an administrative ruling), waiting instead until the county issued an affirmative decision. The appeal of the initial negative actions was untimely, not being filed within 21 days.
City of Spokane v. Stephen Whitehead, 128 Wn. App. 145 (6/21/2005) [Deferred prosecution of DUI offense] RCW 10.05.010(2) provides for only one lifetime deferred prosecution for the gross misdemeanor of driving while under the influence (DUI). Spokane's ordinance did not have a similar limitation. The defendant had previously received a deferred prosecution; when he sought one for a violation under the city DUI ordinance, the trial court denied the application, stating that only one deferral was allowed. On appeal, the court agreed. The state limitation applies statewide; if it did not apply within the city, due to the language of the city ordinance, the city ordinance would be in conflict with the state statutory scheme and 'invalid and of no effect.' RCW 46.08.020.
Jane M. Citizen v. Clark County Board of Commissioners 127 Wn. App. 846, (6/1/2005) [Appointed counsel in dependency actions] The plaintiffs alleged that they and other parents in dependency actions had been denied effective assistance of counsel. The court noted that indigent parents in dependency and termination proceedings have both a statutory and a constitutional right to the appointment of counsel throughout the proceeding. And indigent persons entitled to legal representation must be provided "effective legal representation." However, the court concluded, the citizens did not demonstrate that the county had any duty to assure that they received effective legal representation. The juvenile court met its responsibilities by appointing counsel. The record did not show any requests that the juvenile court appoint them substitute counsel because their current counsel was not providing effective representation. And the plaintiffs did not demonstrate that either the juvenile court or the county board of commissioners had a duty to supervise appointed counsel in dependency proceedings.
Troxell v. Rainier Public School District, 154Wn.2d 345 (5/26/2005) [Claims statute] A plaintiff filed an injury claim against the school district and then filed a lawsuit 59 days later. RCW 4.96.020(4) forbids the commencement of a tort action "until sixty days have elapsed after" the plaintiff files a notice of claim with the local governmental entity. Strict compliance with the waiting period is required. The Court declined to interpret the statute's plain references to 'sixty days' and 'the sixty-day period' as permitting a period of time less than 60 calendar days. In light of the relevant dictionary definitions, the general rule derived from decisions in other jurisdictions directly addressing the computation of a statutorily imposed waiting period, and the treatment of the waiting period in several Washington cases, the Court hold that the legislature intended that 60 calendar days must intervene between the filing dates of the claim notice and the commencement of suit.
City of Pasco v. Shaw, 127 Wn.App.417 (5/5/2005) [Business licensing of residential landlords] Pasco passed an ordinance requiring that residential landlords obtain a business license, with the issuance of which conditioned upon the landlord presenting an inspection certificate showing compliance with health and safety standards. The court upheld the ordinance, holding that the landlords acting directly or through their privately engaged inspectors are not state actors, and that the tenants' privacy rights are not offended. The court further concluded that the ordinance's language (which required compliance with various named codes and "other applicable codes, rules, or regulations" was not so vague that it could not be understood by an ordinary person. Because the vagueness challenge did not raise First Amendment rights, the court's review was on an 'as applied' basis, focused on the facts. Fears of arbitrary inspection were not substantiated by the facts.
Quadrant Corporation v. Growth Management Hearings Board, 154 Wn. 2d 224 (5/5/2005) [Growth Management/Designation of Urban Growth Areas] Counties and cities planning under the GMA may consider vested development rights when determining whether an area 'already is characterized by urban growth' according to the GMA (RCW 36.70A.110(1)). Deference to county planning actions, that are consistent with the goals and requirements of the GMA, supersedes deference granted by the APA and courts to administrative bodies in general. Limiting the term 'growth' to simply the built environment unnecessarily constrains the ability of local jurisdictions to plan and manage for imminent and inevitable growth. Board erred in ruling King County failed to comply with the GMA when King County considered vested subdivision applications in determining whether an area 'already {was} characterized by urban growth.' The court affirmed the court of appeals and board's holding that King County met all the applicable requirements for designating the Bear Creek area a fully contained community.
Guillen v. Pierce County, 127 Wn. App. 278, (4/27/2005) [Two dismissal rule] Plaintiff twice filed identical actions against the county, alleging wrongful death from a traffic accident. Both suits were voluntarily dismissed, and plaintiff filed a new suit. Applying CR 41(a), the "two dismissal" rule, the court held that the plaintiff could not refile the lawsuit, and that the county had not waived application of the rule nor was it estopped from applying it.
Sappenfield v. Department of Corrections, 127 Wn. App. 83 (4/19/2005) [Public disclosure/record requests by inmates] A Department of Corrections rule reserves the right to withhold agency records from inmates, except for the inmate's own file and health records. Corrections has a published procedure for providing additional records to inmates: records requested by inmates are copied and mailed to the inmate, subject to a copying charge of 20 cents per page plus postage, payable in advance. An inmate challenged the department's policy, arguing that the other records should be brought to him without charge, if he only wished to review the records. The court disagreed. While agencies must honor requests received by mail for copies of identifiable public records (RCW 42.17.290), the statute does not categorically preclude denying requests for direct inspection when necessary to preserve the records and its own essential functions. Corrections's policy is reasonable. Prison inmates have access without charge to their own personal records. Access to additional public records, however, can be obtained by means of copies mailed upon payment of a reasonable fee.
City of Auburn v. Kelly, 127 Wn.App. 54 (4/18/2005), [Video-recording of person stopped for traffic offense/right to privacy] Defendants were stopped for possible traffic offenses (DUI); police vehicles were equipped with video recording equipment which was used while police officer interacted with defendants while on a public street. Since officers did not advise defendants of fact they were being tape-recorded, trial court suppressed evidence as a violation of privacy. Court of appeals reversed, holding that the recorded communications with the officers were not "private," and they were not protected by the privacy act.
Exendine v. City of Sammamish, 127 Wn. App.574, (4/18/2005) [Issuance of search warrant for civil code violations] The district court issued a search warrant for alleged violations of the city land use, housing, and nuisance codes. The city's code provides that a willful or knowing violation of the City's civil code is a misdemeanor. Even though the city chose to proceed civilly, the search warrants were issued on probable cause to search for evidence of alleged crimes - willful or knowing violations of the City's civil code. The district court had authority, based upon a finding of probable cause, to issue the search warrants because it had jurisdiction for criminal violations of the city's civil code. RCW 3.66.060
State v. Tandecki, 153 Wn. 2d 842 (3/31/2005) [Criminal law/Attempting to Elude] Charging documents failed to include the term "immediately" in bringing the charge of attempting to elude. The failure to stop immediately is an essential element of the crime of attempting to elude. However, the information (charging document) could be fairly construed to include that element, and defendants did not show any cognizable prejudice.
Owen v. Burlington Northern and Santa Fe Railroad Co., 153 Wn. 2d 780 (3/24/2005) [Negligence/adequacy of corrective actions] Driver and passenger in vehicle were killed when struck by train (due to traffic signal and traffic congestion, vehicle was on train tracks and unable move to safety). Action against railroad settled; city was removed from action by summary judgment. Did plaintiff provide sufficient evidence of city's negligence to overcome summary judgment? Liability for negligence does not require a direct statutory violation, although statutory provision may help define scope of duty or standard of care. City had duty to provide reasonably safe roads and safeguard against inherently dangerous or misleading conditions. If unusual hazard, city may need to exercise greater care than would be sufficient in other settings. Issues of negligence and proximate cause are usually not susceptible to summary judgment. Whether condition is inherently dangerous or misleading is generally a question of fact. If corrective actions are adequate, city has satisfied its duty to provide reasonably safe roads. Here there were other remedial actions available, and reasonable minds could differ whether road was reasonably safe, inherently dangerous, or misleading. Summary judgment was inappropriate. (Whether there was comparative negligence not addressed.)
Stephen K. Eugster v. City of Spokane, 128 Wn. App. 1 (3/22/2005) [Open Public Meetings Act] The court found no violation of the act, as no proof had been given that a meeting occurred or an action taken outside of a public meeting. The city council's failure to modify a proposal offered at the meeting did not constitute a secret ballot; no votes were taken and the consideration of the proposal was at a meeting open to the public.
Quality Rock Products v. Thurston County, 126 Wn. App. 250 (3/8/2005) [LUPA/procedural defects] Appellant of land use decision failed to list necessary party in caption of summons and petition. After disposing question regarding service, court held that formalistic error in caption should not serve as sole basis for denial of review. Since no prejudice was shown, superior court should have allowed appellant to amend caption.
Walker v. King County Metro, 126 Wn. App. 904, (2/28/2005) [Duty of care for transit operation] A common carrier is to act with the highest degree of care toward its passengers, commensurate with the practical operation of its services, including acting with care commensurate with its passenger's age, size, and physical condition of which it has knowledge. Bus driver was not negligent when required to hit brakes to avoid an accident (not caused by driver's negligence), even though driver's actions resulted in the injury of passenger who was in the process of finding a seat. Leaving curb before passenger finds a seat does not necessarily breach standard of care. Duty of care, while the highest towards passengers, is not one of strict liability.
Funk v. City of Duvall, 126 Wn.App. 920 (2/28/2005) [Provision of sewer service/impairment of contract] Petitioners alleged that city had impaired contracts (they previously had paid for sewer system through ULID process) when city issued sewer connection permits, awarded through a lottery, to persons who had not previously participated in the ULID. The court rejected the argument, finding that the city had never promised that hookup would be provided immediately upon demand. Nor did the city promise to deny capacity to new residents who are ready to develop, in order to reserve capacity for residents who are not, and may never be, ready to develop. There was no impairment of contract.
Rabanco v. King County, 125 Wn. App.794 (2/14/2005) [Disposal of solid waste] The fact that a garbage collection company is certificated by the state to collect and dispose of solid waste in more than one county does not require a single county to enter into an interlocal agreement with other counties for the disposal of the solid waste, if the collection area for that county is limited to that county alone. If the geographic collection area extends beyond one county, an interlocal agreement is required to determine where the solid waste will be disposed of.
Peterson v. Citizens for Des Moines, 125 Wn. App.760 (2/14/2005) [Contractual conflict of interest] The city of Des Moines historically had most of its tows of vehicles from public property handled by a local tow truck company. The major stockholder in the tow company was elected to the Des Moines city council. The city had no direct contract with the tow company, although the value of the tows initiated by city officers was approximately $250,000 per year. There were no written policies dictating which tow company should be called. While the superior court found that the statutory conflict of interest laws, RCW 42.23.030, were violated, the court of appeals disagreed, concluding that the individual contracts were not contracts involving the city, entered into under the supervision of the councilmember/company owner. The court concluded that there was no bargained-for consideration, and the benefits obtained by the tow company arose out of the operation of state law, not from a business arrangement with the city. The tow company owner/councilmember did not/could not oversee police officers who called the tow company.
Entertainment Industry Coalition v. Tacoma-Pierce County Health Dept., 153 Wn. 2d 657 (2/10/2005) [State preemption over local smoking ban] The Court found that a local health department regulation prohibiting smoking in all public places conflicted with a state law (the Washington Clean Indoor Air Act) that allows the designation of smoking places in public areas. Since the local regulation irreconcilably conflicted with a specific state statutory provisions, it was invalid. The Court dismissed arguments based upon the nondelegation doctrine and equal protection.
State of Washington v. Higgins, 125 Wn. App. 666 (2/7/2005) [In-vehicle mounted video cameras recordings of DUI suspects] RCW 9.73090(1)(d) sets out procedures for the use of cameras mounted in law enforcement vehicles. In this case to defendants argued that the video recordings of them taken during a DUI stop could not be used since the statutory requirements were not followed. The court disagreed holding that the statute applies only to private conversations, and that the conversations at issue in their cases were not private. The police officers were not required to notify the drivers that they were making an audio recording.
Kitsap County v. Mattress Outlet/Kevin Gould, 153 Wn. 2d. 506, (1/27/2005) [Constitutional law/restriction of commercial speech] Mattress Outlet advertised its business by hiring persons to stand on sidewalks and wave at passerbys while wearing specially-made raincoats that displayed store information. The county contended that the raincoats were "signs" and their use offsite violated its sign code. The code requires sign permits for certain signs and prohibits "billboards and signs not directing attention to products and services available on the premises where the sign is situated." The supreme court, in a plurality decision, dismissed the citations, with four justices concluding that the county ordinance impermissibly restricted commercial speech. These justices found that the raincoats were signs prohibited by the sign code, the mattress sales were lawful, the advertisements were not misleading, and that the county had a substantial interest in traffic safety and aesthetics. However, these four justices concluded that the county's ban on wearing signage had only a minimal effect, if any, on protecting aesthetics and safety, and that the restrictions reached further than necessary to achieve its goals. Perhaps time and place regulations could have been drafted to achieve traffic safety, but the county's regulations went too far by totally banning the use of offsite signs. The four justices favoring dismissal were joined by one justice who favored dismissal on the nonconstitutional ground that the raincoats did not constitute signs. In a concurring opinion one of the four justices that found constitutional defects in the regulations also found that the regulations were vague. The remaining four justices would have upheld the citations and the constitutionality of the sign regulation as applied to the raincoat signs.
Bjornsen, English, and Clark County v. East County Reclamation, 125 Wn. App. 432 (1/25/2005) [Vesting and phased environmental review] A project applicant may not "waive" vested rights for some regulations, but choose to follow other, later-adopted (and more favorable) regulations, so-called "cherry picking." Phasing of review of final EIS is not allowed where phasing would "avoid discussion or distort the impact of a project's cumulative effects." Also, applicant did not request phased review and county did not indicate that review would be phased.
City of Bremerton v. Tucker, 126 Wn. App. 26 (1/11/2005) [Sentence enhancement for Driving under the Influence] Court held that former RCW 46.61.5055(11) (a) (vii) does not violate due process by increasing the penalty for a second DUI where a defendant has previously admitted to having committed a prior DUI under a deferred prosecution (even though that prior DUI charge was dismissed following successful completion of the deferred prosecution conditions).
World Wide Video v. City of Spokane, 125 Wn. App.289 (1/11/2005) [First Amendment/regulation of adult businesses] The court upheld an adult retail business ordinance that placed location limitations on such businesses. The ordinance previously had been upheld under federal First Amendment review (368 F. 3d 1186 (9th Cir. 2004)), but here the issue was raised whether state constitutional rights of free speech offered broader protection. Reviewing factors adopted by the supreme court decision in State v. Gunwall, 106 Wn. 2d 54, 58 (1986), the court held that the city's time, place and manner regulations were not subject to broader protection under the state constitution. The court also concluded that the regulations did not amount to prior restraint and that they neither amounted to a bill of attainder nor an impairment of contract. A hearing examiner's decision on an extension of an amortization period was upheld.
City of Renton v. Scoccolo Construction, 125 Wn. App.150 (1/10/2005) [Franchise agreement/agency] Among various issues reviewed, the court concluded that a franchisee does/did not "act for" the city when it delayed relocating its utility lines after city's request under its franchise agreement, a delay that resulted in additional project costs associated with a street widening project. Contractor had sued city for damages associated with the delay.
2004
State of Washington v. K.N., 124 Wn. App. 875 (12/27/2004) [Minor in possession charge/proof of age] The defendant had been convicted of being a minor in possession of alcohol, with the proof of his age presumed from the fact that the defendant was in juvenile court. The court of appeals overturned the conviction and, using due process analysis, held that a stipulation of age for determining the court's jurisdiction does not relieve the state's responsibility to prove the element of age.
State of Washington v. Harner, 153 Wn. 2d 228 (12/23/2004) [Criminal law, drug courts] County's failure to establish a drug court, enabled but not required by RCW 2.28.170, did not violate defendant's right to equal protection or due process of law. A county's failure to establish such a court may be based upon legitimate objectives. A drug court is not an entitlement.
Antonius v. King County, 153 Wn. 2d 256 (12/23/2004) [Sexual discrimination] A hostile work environment claim may be based on acts occurring more than three years before the court action is filed if those acts and the subsequent acts, those which occurred within the three-year statute of limitations, were part of a unitary, indivisible pattern of conduct.
City of Bainbridge Island v. Ray Biggers, 124 Wn. App. 858 (12/21/2004) [Shoreline Management Act/moratoria]. After disposing a question regarding standing, the court held that the city lacked authority to impose a moratorium on certain shoreline development under its Shoreline Master Program. The Shoreline Management Act (SMA) does not provide for the issuance of moratoria. Moratoria under RCW 35A.63.220 are limited to planning and zoning; under RCW 36.70A.390, they are limited to growth management. Growth management specifically provides that the SMA governs the unique criteria for shoreline development; thus, the SMA "trumps" growth management and since the SMA does not provide for moratoria on shoreline use or development, the city's moratorium must fail.
Harvey v. County of Snohomish, 124 Wn. App. 806 (12/20/2004) [Public duty doctrine] Summary judgment favoring county overturned and case returned to trial court. The fact that emergency response dispatch activities were conducted through a separate entity created by interlocal agreement did not relieve county of its obligations and responsibilities under the law. At issue was whether assurances given by 911 operator created a special relationship taking the matter out of public duty doctrine protection. Interlocal agreement itself does not remove situation from analysis to determine whether there is liability or not under public duty doctrine. Court of appeals decision reversed on appeal, May 18, 2006.
Diehl v. Western Washington Growth Management Hearings Board, 153 Wn. 2d 207 (12/16/2004) [Appeal of hearings board decision] In an appeal of a growth management hearings board decision to superior court, Civil Rule (CR) 4, relating to service, does not apply, as that rule is inconsistent with the Administrative procedures Act. Service may be made in person or by mail within 30 days of the agency decision. The appellant himself (or herself) may make service.
Burnett v. City of Tacoma, 124 Wn. App.550 (12/7/2004) [Negligence/failure to file claim/public duty doctrine] Heavy rainfall resulted in excess discharges from reservoirs behind city-owned dams, resulting in property loss. Plaintiffs sought damages from city. The court rejected the action because the plaintiffs had improperly filed claim with the city attorney, rather than with the city clerk. Additionally, the court rejected liability based upon violation of public duty doctrine. State legislation did not impose duty to warn specific property owners. There was no direct contact between city and plaintiffs, thus no special relationship was created. Volunteer rescue doctrine did not apply, as city did not have control over flood and its actions did not worsen the situation.
Paradise Village Bowl v. Pierce County, 124 Wn. App. 759 (12/6/2004) [Regulation of gambling, social card rooms] The court upheld the County's ban on social card rooms, finding that the prohibition was not a taking. The prohibition did not destroy the economic viability of the property. The regulation was a valid exercise of the police power which safeguarded the public interest. It prevented a harm from occurring, a public nuisance, and did not go beyond preventing the harmful activity. Similarly, the prohibition did not violate substantive due process: the prohibition was for a legitimate public purpose, it was reasonably necessary to achieve that purpose, and it was not unduly oppressive (it did nothing more than regulate the activity responsible for the harm created by the activity). Finally, the regulation did not violate equal protection; the classes created were based upon reasonable classifications.
Henderson v. Kittitas County, 124 Wn. App. 747 (11/16/2004) [Rezone of land] Upheld rezone of rural land. Proponent of rezone must show a substantial change in circumstances since last zoning (or proposal implements policies of comprehensive plan), and that the change justifies a rezone for public health, morals, or general welfare. Changes in nearby property changed use and marketability of subject property and change would implement comprehensive plan. Additional tax money generated from zone change will allow for additional services to community, which is a benefit to public health, safety and welfare. Also, change increases diverse uses of rural county lands and decreases "rural sprawl." Rezone proposal also met local criteria. There also was insufficient evidence that rezone would be materially detrimental to nearby properties.
Vicwood Meridian Partnership v. Skagit Sand and Gravel, Thurston County, 123 Wn. App. 877 (10/19/2004) [Application of Right-to-Farm Act to mushroom production] The court applied the Right-to-Farm Act (RCW 7.48.300 - .310) and held that any odor created by compost for mushrooms did not constitute a nuisance. Composting for mushrooms is an "agricultural activity." The composting did not have a substantial adverse effect on public health and safety, it was not inconsistent with "good agricultural practices," and the composting was established prior to the surrounding nonagricultural activities. The court also concluded that the composting did not amount to negligence under the res ipsa loquitur doctrine.
Marina Association v. City of Des Moines, 124 Wn. App. 282 (9/27/2004) [Increase in marina rates/ higher rate for nonresidents did not violate equal protection] Higher moorage rates for nonresidents did not violate federal equal protection. Leasehold excise tax, which applied to residents and nonresidents alike, does not fully compensate city for its services. Code cities have a broad grant of authority and they may provide marina services, charge for those services, and charge amounts that will result in a "profit" which can be transferred to the general fund.
Cornell Pump v. City of Bellingham, 123 Wn. App. 226 (9/20/2004) [Competitive bidding; award of attorney fees] Company submitting lowest, but nonconforming, bid briefly obtained a temporary restraining order against entry into contract with second low bidder. Order subsequently dissolved. Court has discretion in determining whether to award attorney fees.
City of Seattle v. Mighty Movers, 152 Wn. 2d 343 (9/9/2004) [Posting of signs on utility poles] The Court reversed a decision by the court of appeals which had held that utility poles, located on or adjacent to a street or sidewalk, were a "traditional public forum" and that efforts to restrict the posting of signs on the poles were unconstitutionally broad. The Supreme Court held that utility poles and other publicly-owned structures are not traditional public forums. The fact that utility poles have been used for the purpose of communication does not make the poles a public forum, especially where use of the poles for posting signs has been made illegal. The fact that some poles are located in parking strips does not itself make the poles a public forum. Speech even in a public forum is subject to time, place and manner restrictions, if they are content-neutral, narrowly-tailored, and leave open ample alternative channels of communication. Cities may restrict the use of their utility poles if the restrictions achieve legitimate governmental purposes and are reasonable in light of the purposes served by the structures and are content and viewpoint neutral. Seattle's restrictions were reasonable in view of the poles primary purpose, to support utility lines. Seattle's restrictions did not prohibit the public from exercising free speech on public streets and in other public places, such as by picketing, parading, distributing handbills, and by carrying signs.
Cummins v. Lewis County, 124 Wn. App. 247 (9/8/2004) [Public duty doctrine/special relationship] Wife calls 911 to report her husband's heart attack; immediately hung up. There was confusion over where the call came from. Responding police were led to believe call was a prank. Heart attack victim died. Court found no liability since plaintiff had failed to establish a special relationship between caller and dispatch center. Automatic recording of call did not establish such a relationship.
Sperr v. City of Spokane, 123 Wn. App 132 (9/2/2004) [Inspection of public records] Plaintiff sought to review criminal records that did not exist, and asked to personally search police records. Court held that person has no right to inspect or copy records that do not exist and city has no duty to create or produce a record that is nonexistent. Public disclosure act does not authorize indiscriminate sifting through an agency's files by citizens searching for records that have been demonstrated not to exist.
Osborn v. Mason County, 122 Wn. App. 823 (8/10/2004) [Rescue doctrine and public duty doctrine] County sued for failure to provide community notice of danger presented by sex offender (sex offender raped and murdered 15-year old girl). Court held that while the "notification statute" in effect at time of the girl's death (2001) did not create a duty to notify, it also did not create immunity from lawsuit filed relating to notification that was given. Court concluded that, under rescue doctrine, lawsuit against county could proceed; plaintiff only required to prove that the county, having undertaken to provide aid to plaintiff, increased her risk of harm. (County had stated that it would provide notification of the presence of the sex offender and discouraged community members from providing such notice.) Also, liability not necessarily barred by action of the public duty doctrine, since the rescue doctrine is one of the exceptions to that doctrine. Reversed on appeal, May 18, 2006.
Bellewood No. 1 v. LOMA, 124 Wn. App. 45 (8/9/2004) [Preannexation zoning/challenge of validity] Time to challenge validity of preannexation ordinance begins to run from the date the ordinance is adopted, not the date the ordinance becomes effective (after annexation was approved). State law favors expeditious review of land use decisions.
State v. Heritage, 152 Wn. 2d 210 (8/5/2004) [Miranda warnings; custodial interrogation] Questioning of persons by park security officers may require giving of Miranda warning, if questioning is custodial. However, in this instance, the defendant was not in custody, as she was not physically detained, officers did not have power to arrest, and reasonable person would not believe that the defendant had her freedom curtailed to a degree analogous to arrest.
Vehicle/Vessel v. Whitman, 122 Wn. App. 781 (8/3/2004) [Appointment of vehicle licensing subagent] Licensing subagent resigned his appointment, conditioned upon a named person receiving the subagency appointment. When a different entity was appointed, original subagent withdrew resignation. Court holds that original resignation was revoked by nonoccurrence of specified event. County was not required to enter into contract with agency approved by the state.
Deschamps v. Sheriff's Office, 123 Wn. App. 551 (7/20/2004) [Firearms licensing/immunity for good faith actions] RCW 9.41.0975 grants qualified immunity from potential lawsuits and liability relating to the grant or denial of firearm permits. Here plaintiff failed to demonstrate that county worker's actions did not involve good faith. Record did not demonstrate dishonesty or unlawfulness of purpose. Plaintiff failed to provide any evidence raising a genuine issue of fact regarding county's efforts to resolve initial denial of firearm application.
Koenig v. City of Des Moines, 123 Wn. App. 285 (7/19/2004) [Public records/records of sexual assault against minor] RCW 42.17.31901 makes ‘information revealing the identity of child victims of sexual assault" confidential, but it does not exempt the entire record where person requests record, identifying the name of the victim. Neither does RCW 42.17.310(1)(e) exempt entire record from disclosure, just identifying information. However, "sexually explicit descriptive information" can be withheld. Court awarded reasonable attorney fees to party requesting record
Pavlina v. City of Vancouver, 122 Wn. App. 520 (7/13/2004) [Assessment of development impact fees] Even though preliminary plat approval occurred before an impact fee ordinance was adopted, the fees could be imposed when the developer applied for a building permit. Impact fees are not an additional condition of approval. That the developer's plan received preliminary approval previously (preliminary plat approval) does not preclude imposition of impact fees when a building permit is sought.
Carrillo v. City of Ocean Shores, 122 Wn. App 592 (7/13/2004) [Water and sewer availability charges] City requirement that property owners pay water and sewer "availability charge" for their properties, even though the properties were not connected to the utilities, found to be an unconstitutional tax, not a permissible regulatory fee. Test to determine whether charge is a fee is whether charge is to raise revenue or to regulate; whether monies raised are allocated only to regulatory purposes; and whether there is a direct relationship between fee and service received or between fee charged and burden produced by the fee payer. Here charge was "to fund water and sewer capital facilities," not to regulate. City did not demonstrate how assessed properties were regulated by the charges. City did not demonstrate direct relationship between fee and benefit received. Charge was a non-uniform tax. City's defenses of laches, estoppel, and waiver denied by the court. Court rejected argument that the unconstitutionality of the tax was to be applied prospectively only. Sovereign immunity does not excuse city from payment of pre-and post-judgment interest.
City of Spokane v. Neff, 152 Wn.2d. 85 (7/8/2004) [Criminal law: constitutional vagueness] Defendant charged with loitering for the purposes of prostitution under city ordinance. Circumstances for determining whether offense has been committed include whether defendant is a "known prostitute." Court held that, without definition, the term "known prostitute" fails to provide an ascertainable standard, resulting in ordinary people not being able to understand what conduct is prohibited and allowing the police too much discretion in determining whether to file charges.
Doty v. Town of South Prairie, 122 Wn. App 333 (7/7/2004) [Industrial Insurance coverage and volunteer firefighters] Volunteer firefighters are not covered by the state industrial insurance act, ch. 51.12 RCW. The fact that a volunteer is paid a small stipend for call outs and drills does not make the person an "employee." Accordingly, a volunteer injured while providing services is not precluded from taking action against the town for those injuries (as the person would be, if he or she were covered by industrial insurance).
City of Seattle v. Clark-Munoz, 121 Wn.2d. 39 (7/1/2004) [Traffic offenses: DUI: testing equipment] The court concluded that the results of breath tests, given to persons suspected of driving under the influence of alcohol, were inadmissible since the testing of the machines failed to follow procedures established by rule (thermometer used for testing was not traceable to standards maintained by the National Institute of Standards and Testing (NIST). The test results could not otherwise be used as "other evidence" of intoxication.
Yousoufian v. County Executive, 152 Wn. 2d. 421 (2004) [Public records/penalty for failure to timely produce records.] Court of Appeals decision (114 Wn. App. 836) affirmed in part, reversed in part. RCW 42.17.340(4) provides for a penalty assessment of from $5 to $100 for each day disclosure of a public record is unlawfully denied. Trial court's discretion is limited to determining penalty amount within the statutory range; court cannot reduce the penalty period. Court must determine number of days plaintiff was denied access, then determine appropriate penalty in $5 to $100 range. A $5 per day penalty is unreasonable, if the denying agency acted with gross negligence. Assessment of penalty is not required for each individual record improperly withheld, if the disclosure request involves multiple records.
Police Guild v. City of Seattle, 151 Wn. 2d 823 (6/24/2004) [Civil service/appointments] A rule allowing the civil service commission to certify the top five exam scores to the appointing authority "substantially accomplishes" the purpose of the civil service laws, assuring promotion based on merit. The state civil service laws provide a prototype for local systems, allowing local flexibility and discretion. A second part of Seattle's rule, which allowed certification of the candidates scoring the top 25 percent exam scores, had been found by the court of appeals to be inconsistent with the purpose of the civil service laws; the supreme court held that the 25 percent alternative could be severed without invalidating the remainder of the rule.
City of Spokane v. Ward, 122 Wn. App. 40 (6/22/2004) [Award of costs to party prevailing in appeal of traffic infraction] The court held that RCW 46.63.151, which prohibits the award of costs in a traffic infraction case, prevails over court rule, RALJ 9.3, which provides for costs to the prevailing party in an appeal of a traffic infraction judgment. Since the award of costs affects substantive rights, the statutory rule prevails over the court rule, where application of the rule and statute are irreconcilable.
City of Redmond v. Moore, 151 Wn. 2d 664 (6/3/2004) [Suspension of operator's license] Several drivers had their drivers' licenses suspended by the Department of Licensing after they either failed to appear, pay, or comply with a traffic infraction notice. The suspensions were made pursuant to RCW 46.20.289 without an opportunity for an administrative hearing. Thereafter, the drivers were arrested for driving with a suspended license (DWLS), contrary to RCW 46.20.342(1). The district court held that the suspensions, having been made without offering an opportunity for a hearing, violated due process, and thus the DWLS arrests and charges were invalid. The supreme court agreed. The court held that a driver's interest in his or her driving privileges was substantial, due process was required to suspend the license, and that a person must be given an opportunity to be heard at a meaningful time and in a meaningful manner. Without the opportunity to be heard, the suspensions violated due process and were unconstitutional.
Chevron USA, Inc. v. Hearings Board, 123 Wn. App. 161 (6/1/2004) [Potential annexation areas; notice for comprehensive plan amendments] It is not inconsistent for the comprehensive plans of two cities to include the same area as a potential annexation area. Inclusion in one plan does not thwart the ability for a similar inclusion in the other city's plan. Also, there was no right to individualized notice of proposed comprehensive plan amendments; published notice is adequate.
City of Seattle v. Yes for Seattle, 122 Wn. App. 382 (6/1/2004) [Power of initiative] While generally a court will not conduct a pre-election review of an initiative, it will do so to determine whether it is in the scope of the initiative power. The initiative power is not available when the state legislature has delegated power exclusively to the legislative authority of the city (instead of to the city as a corporate entity). Since the authority to act under the Growth Management Act (GMA) has been delegated to the city's legislative authority, citizens cannot use the initiative process to enact GMA development regulations (or to repeal GMA ordinances by referendum). It does not matter that the regulations could have been enacted under authority other than GMA, as all enactments that fall under the GMA definition of development regulations are subject to the requirements of GMA (and thus not appropriate for an initiative). The fact that some portions of the initiative might be subject to initiative does not require that the whole proposal be placed on the ballot.
Kilbury v. Franklin County, 151 Wn. 2d 552 (5/27/2004) [Elections/Redistricting] The court, in determining whether a county redistricting plan was consistent with state law requiring the "compactness" of districts, reviewed each individual district, not the whole. The redistricting plan was upheld by the court, as the county had not erroneously interpreted the compactness requirement nor did it act arbitrarily and capriciously in applying the compactness criteria to each district.
DeTray v. City of Olympia, 121 Wn. App 777 (5/25/2004) [Appeal of land use decision/res judicata] The doctrine of res judicata bars reasserting the same claim in a subsequent land use application. If there is "substantial change in the circumstances or conditions relevant to [an] application," res judicata will not be found. Significant changes to an application, however, will not in itself remove the bar; the changes must be of a kind that will address and mitigate the problems initially under review. Since the changes to the application here under review exacerbated---instead of ameliorating---the problems initially addressed, there was not a "substantial change" in the new application, and the applicant was barred from appealing the conditions imposed on his second application.
Hangartner v. City of Seattle, 151 Wn. 2d 439 (5/13/2004) [Public records disclosure] The court issued three primary rulings: (1) a government agency need not comply with an overbroad request; (2) a "litigation-charged atmosphere" does not necessarily constitute a "controversy" where the public agency fails to establish that there was any threat or reasonable anticipation of litigation; and (3) the attorney-client privilege is an "other statute" (under RCW 42.17.260(1)) that prohibits disclosing certain records through the PDA.
Water Co. v. Board of Health, 151 Wn. 2d 428 (5/13/2004) [Fluoridation] The court invalidated a board of health resolution requiring county water companies and districts to fluoridate their water. The court held that the fluoridation order, issued under the general authority given to boards of health to preserve life and health, was in conflict with the specific authority given water districts to decide whether their water supply should be fluoridated.
Staples v. Benton County, 151 Wn. 2d 460 (5/13/2004) [Location of county offices] There is no constitutional provision preventing the county from locating government offices outside a county seat; the location of county offices is controlled by statute. Thus, the location of law and justice functions outside the county seat was not improper.
Arborwood Idaho v. City of Kennewick, 151 Wn. 2d 359 (5/6/04) [Taxation/fees/ambulance service charge] An ordinance imposing a monthly ambulance service charge on each household, business, and industry within the city was struck down as a tax for which there was no statutory authority. The court held that the charge was not justified as a regulatory fee, benefit charge, or a charge for direct services.
Spokane Research v. City of Spokane, 121 Wn. App. 584 (5/6/2004) (Public disclosure) An intervenor is not a "prevailing party" and thus is not entitled to attorney fees, costs, and penalties under the public disclosure act.
ACLU v. City of Seattle, 121 Wn. App. 544 (5/3/2004) [Public disclosure] ACLU sued city over city's refusal to supply copy of issues to be negotiated between city and police union during collective bargaining; city maintained lists exempt as part of deliberative process. Although the court required further review of the documents, it held that, to be exempt under the deliberative process exemption, it is not required that a record be "inter-agency," only that it be a preliminary draft, note, or recommendation in which opinions are expressed or policies formulated. Also, the statute does not require that the exempt documents be prepared by subordinates to qualify for exemption. The fact that collective bargaining is exempt under the Open Public Meetings Act does not protect written collective bargaining material from disclosure.
Nauroth v. Spokane County, 121 Wn. App. 389 (4/27,2004) [Recreational use statute] A person seeking damages due to "known dangerous artificial latent condition" without posted warning signs must prove either actual knowledge of condition or facts from which the trier of fact could reasonably infer actual knowledge by a preponderance of evidence.
Homeowners Association v. Cloninger & Associates, 151 Wn. 2d 279 (4/15/04) [Rezoning]. Property may be rezoned consistent with comprehensive plan even though ordinance implementing the comprehensive plan amendment allowing the proposed use has not yet been adopted.
Ferry County v. Concerned Friends, 121 Wn. App. 850 (4/13/2004) [Growth Management Act] County's listing of endangered, threatened, or sensitive species did not comply with the Growth Management Act because it failed to use best available science. An expert's report based entirely on a general treatise and a conversation with a state biologist, unsupported by field observations, consultations with interested experts and other reasoned analysis is not "best available science." Challenge on appearance of fairness grounds (letters sent to hearings board outside hearing process) failed as no prejudice shown.
Snohomish County Fire Protection District No. 1 v. Boundary Review Board, 121 Wn. App. 73 (4/5/2004) [Annexation/Boundary Review Board review] The initiators of an annexation are required to file a notice of intention with the boundary review board within 180 days of the annexation proposal? When does that 180-day period begin? The court held that the period begins, for purposes of the direct petition method of annexation, when the 75 percent petition is filed with the city.
Castro v. Stanwood School District, 151 Wn. 2d 221 (4/1/04) [Claims statute/statute of limitation] RCW 4.16.230, which prohibits the commencement of an action against a local government for damages arising out of tortuous conduct for 60 days following the filing of the claim tolls [temporarily stops] the running of the statute of limitations, which then resumes after the running of the 60 days. Essentially, the statute adds 60 days to the end of the otherwise applicable statute of limitations.
Housing Authority v. City of Pasco, 120 Wn. App.839 (3/25/04) [Attempt to dissolve joint housing authority] City's attempt to unilaterally dissolve a joint city-county housing authority and replace it with a city-only housing authority rejected by court was not provided for by state law, and dissolution was contrary to legislature's intent and general law, thus prohibited.
Wescot Corp. v. City of Des Moines, 120 Wn. App. 764 (3/22/04) City's refusal to consider an company's shoreline substantial development permit application, because applicant had not received city's authorization to use city park, could not be appealed under Land Use Petition Act (LUPA), as use of parks is specifically excluded from LUPA review.
In re Property in Tukwila, 120 Wn. App. 737 (3/22/04) [Taking of property] State's destruction of trees, potentially infected by a beetle which, if present, would pose threat to region's fruit and other trees, was necessary to avoid public calamity; it was not a "taking" under either state or federal constitution and did not require payment of compensation.
Thurston County v. City of Olympia, 151 Wn. 2d 171 (3/18/04) [Relocation of county offices outside county seat] Statutory requirements and a court rule requiring that certain county functions be located "at the county seats" means "at" or "within," not "near." Accordingly, proposal to locate superior and district courts, a new jail, and other county offices in Tumwater, which is located near Olympia, the county seat, could not be sustained.
Council of County & City Employees v. Hahn, 151 Wn. 2d 163 (3/18/04) [Collective bargaining for court employees] General Rule 29, which requires judges to supervise all personnel employed by the court, does not conflict with the Public Employees' Collective Bargaining Act (PECBA) (chapter 41.56 RCW). The court rule does not preempt the statute. The court denied a motion requiring the superior and district courts to bargain with the employees' union, finding that the employees had an adequate remedy at law under the PECBA.
Sane Transit v. Sound Transit, 151 Wn. 2d 60 (3/4/04) [Public funds/validity of voter-approved project that differs from original proposal] Although project approved by voters has been substantially altered, both in size and time for completion, the project may nevertheless proceed and taxes be collected where the authorizing resolution provided discretion and permitted deviation from original plans, caused by changed conditions.
WCHS, Inc. v. City of Lynnwood, 120 Wn. App. 668 (3/1/04) [Vesting/land use/business licensing] Building permit application vested development when completed application was submitted to the city. Ordinance prohibiting development adopted after complete application filed with city had no effect, as applicant was already vested under former law. Applicant did not require either business license or state facility authorization before obtaining either business license or building permit.
Gontmakher v. City of Bellevue, 120 Wn. App. 365 (3/1/04) [Immunity from damages] One who provides information to a governmental entity is immune from civil liability based on that communication. A local government qualifies as a "person" for such immunity under RCW 4.24.510. In addition, complaining party was not delayed and did not suffer any damages, other than speculative.
Leininger v. Wash. State Dep't of Licensing, 120 Wn. App. 68 (2/5/04) {Implied consent/right to counsel]. A person arrested for drinking under the influence of alcohol is not required to have an attorney present when he or she takes a breath test to determine the person's blood alcohol content; the person, however, must be given the opportunity to call an attorney.
Delos Reyes v. City of Renton, 121 Wn. App. 498 (2/2/2004) [Claims statute] A claim filed in a wrongful death action against the city was barred because the claimant failed to personally verify (and sign) the claim submitted to the city.
Grant Fire Prot. District V v. City of Moses Lake, 150 Wn. 2d 791 (1/29/04) – [Petition Method of Annexation/Validity] – The petition method of annexation is not unconstitutional and the case of Grant County Fire Protection District No. 5 v. City of Moses Lake, 145 Wn. 2d 702 (2002) is vacated. City Limits] -- A city can condemn land outside of its city limits if the use is for a park within the meaning of RCW 8.12.030. In this case the court determined that a trail (Discovery Trail) designed primarily for pedestrians and bicyclists and meant to teach the story of the Corps of Discovery expedition fits the definition and purposes of a park.
City of Olympia v. Drebick,119 Wn. App. 774 (1/22/04) – [Traffic Impact Fee/Validity] – The calculation of a development impact fee under RCW 82.02.060 is limited by the requirement of RCW 82.02.050 that the fee be reasonably related to the individualized effect of the particular proposed development. Decision reversed by Supreme Court 1/19/2006.
Harberd v. City of Kettle Falls, 120 Wn. App. 498 (1/15/04) [Extension of water beyond boundaries/failure of service of lawsuit] Lawsuit filed because of city's refusal to extend water service beyond city limits fails because claim for damages not files, service of claim not properly made, statute of limitations had run, city made no express agreement to provide water and no implied contract could be found, and estoppel could not be found, as no promise for service had been given.
City of Tacoma v. Zimmerman,119 Wn. App. 738 (1/14/04) – [Eminent Domain/Historic Value] – A city council did not abuse its discretion when it decided to exercise its eminent domain power under the Derelict Building Procedure of the city's code.
Lakeside Industries v. Thurston County, 119 Wn. App. 886 (1/13/04) [Land use/conflict between plan and specific regulations] A comprehensive plan is a guide and not a document designed for making specific land use decisions; conflicts concerning a proposed use are resolved in favor of the more specific regulations. Thus, to the extent the comprehensive plan prohibits a use that the zoning code permits, the use is permitted. But where the zoning code itself expressly requires a site plan to comply with a comprehensive plan, the proposed use must satisfy both the zoning code and the comprehensive plan. Plan was not ambiguous, and permitted existing commercial activities. Case-by-case evaluation of proposal allows no standards for review, and cannot be used to deny use otherwise allowed.
City of Long Beach v. Wong, 119 Wn.App. 562 (1/6/04) -- [Eminent Domain/Outside City Limits] -- A city can condemn land outside of its city limits if the use is for a park within the meaning of RCW 8.12.030. In this case the court determined that a trail (Discovery Trail) designed primarily for pedestrians and bicyclists and meant to teach the story of the Corps of Discovery expedition fits the definition and purposes of a park.
2003
Washington Education Association v. Public Disclosure Commission, 150 Wn.2d 612 (12/11/03) -- [PDC Guidelines/Use of Public Facilities in Campaigns] -- Guidelines issued by the Public Disclosure Commission, regarding the use of public facilities in campaigns, are interpretive statements only and not formally adopted rules or orders. These guidelines are advisory only, and issued as an aid to the public, interpreting the laws and rules concerning the use of public facilities in campaigns.
Supporters of the Ctr., Inc. v. Moore,119 Wn. App. 352 (12/9/03) – [Public Work/Prevailing Wage] – A performing arts center built with substantial state and municipal funds on leased public land is a public work and prevailing wages must be paid on that work.
Okeson v. City of Seattle, 150 Wn.2d 540 (11/13/03) – [Street Light Utility] – The question of whether a city has authority to incorporate the expenses of city streetlights within the electrical rates charged to customers of the city's electrical utility depends upon (1) whether providing streetlights is a governmental or a proprietary function of the local government; and, (2) whether the costs imposed upon utility customers are a tax or a fee. In this case the court determined that maintenance of a street lighting system is a governmental function and the street lighting charges imposed on utility ratepayers was not lawfully imposed in accordance with express statutory or constitutional authority. Maintenance of a street lighting system is a governmental function and shifting streetlight costs to ratepayers is designed to raise revenue for the general city budget. Because there is no relationship between electricity used by utility customers and energy used by streetlights, these charges are a tax not a fee.
City of Sequim v. Malkasian119 Wn.App. 654 (11/12/03) – [Initiative/Invalidation] – When a city seeks to invalidate an ordinance resulting from a voter initiative, it may not single out and sue the initiative's sponsor in his or her individual capacity. Rather, the city must sue a citizen or citizens whom the trial court finds to be representative of the electorate and willing and able to defend the ordinance. Note: This decision was reversed on appeal, see 157 Wn. 2d 251 (2006).
Mike Johnson, Inc. v. Spokane City, 150 Wn.2d 375 (10/23/03) -- [Construction Contracts/Notice and Claim Procedures] -- Washington law requires contractors to follow contractual notice provisions unless those procedures are waived by a party benefiting from the provision. A waiver by conduct requires "unequivocal acts of conduct evidencing an intent to waive."
Stevens County v. Labor & Indus.,118 Wn.App. 870 (10/30/03) – [Medical Aid Benefits/Jail Inmates] DOL provides medical aid benefits to volunteers who work for counties and other political subdivisions. A county jail inmate who was injured while performing inmate worker duties meets the definition of volunteer worker defined under industrial insurance laws.
Pierce County v. State,150 Wn. 2d 422 (10/30/03) – [Initiative Validity/I-776] -- An initiative measure fixing annual license tab fees for motor vehicles at $30 per vehicle and repealing certain local vehicle excise taxes and fees did not embrace more than one legislative subject that was sufficiently expressed in its title, did not substantially impair a county's contractual obligation to certain bondholders, did not violate constitutional precepts of local home rule, and did not exceed the scope of initiative power.
City of Lynnwood v. Video Only, Inc., 118 Wn.App. 674 (10/6/03) -- [Eminent Domain/Public Facilities District] -- A shopping center acquired for a lawful public use (convention center parking and future expansion) even though there is a private component when the PFD leases the property as an interim financing device for construction and operation of a regional center.
Maleng v. Corrections Guild, 150 Wn.2d 325 (9/25/03) -- [Initiative Petition/Validity] -- An initiative petition that would direct the county council to propose an amendment to the county charter, for a vote of the people, to reduce the number of councilmember positions, is consistent with the initiative power reserved to the people and with the county charter.
Showalter v. City of Cheney, 118 Wn.App. 543 (9/23/03) – [Street Use/Takings] – A property owner has no property right to maintain a canopy on the sidewalk, and City did not invade or interfere with a property right when it ordered the Showalters to remove the canopy. Consequently, the trial court erred as a matter of law in entering a partial summary judgment order adjudging that City owed the Showalters compensation for taking private property for public use.
Eugster v. City of Spokane, 118 Wn.App. 383 (9/16/03) -- [Mandamus/Loan of Parking Meter Revenue to the PDA] -- A court may issue a writ of mandamus to local government officials to compel performance of a legal requirement. In this case the court determined that a clear legal right to the loan was created by city ordinance.
Low Income Hous. V. City of Lakewood,119 Wn.App. 110 (9/9/03) – [Comprehensive Plan/Housing Element] – The Growth Management Hearings Board did not sufficiently address whether the city's comprehensive plan satisfies the affordable housing demands identified under a methodology required by county planning policies.
Heesan Corp. v. City of Lakewood, 118 Wn.App. 341 (9/9/03) -- [Adult Entertainment/Adult Cabaret License] -- Lakewood's adult cabaret license revocation provisions do not constitute an impermissible prior restraint on the right to freedom of expression, nor are they unconstitionally overbroad or vague.
Conf. Ass'n v. Clark County, 118 Wn.App. 22 (8/12/03) -- [Building Regulations/Place of Worship/RLUIPA] -- A county does not violate a religious organization's right to the free exercise of religion by denying the organization a conditional use permit to construct a building based on a determination that the building does not constitute a church within the meaning of a local land use ordinance ("a permanently located building primarily used for religious worship").
In the Matter of the Recall Charges of the Mayor of Concrete, 149 Wn. 2d 860 (7/17/03) - [Recall/Sufficiency] - Charges that the mayor of Concrete used his elected office to (1) benefit a town business although the establishment did not comply with applicable building regulations; and (2) for his personal benefit by removing a town permit file regarding his property and failing to obtain required permits, were factually and legally sufficient to support a recall election.
White v. Salvation Army, 118 Wn.App. 272 (7/16/03) - [Industrial Welfare/Meal and Rest Periods] - Requiring workers to remain on call, while they are not engaged in specific work-related activities, is not a violation of WAC 296-126-092 concerning rest and meal periods so long as the employer pays for this time and complies with the other provisions of the WAC.
In re Recall Charges Against City of Des Moines Elected Officials, 149 Wn.2d 787 (7/10/03) - [Recall/Sufficiency] - A recall petition alleging various violations against the Des Moines mayor and three councilmembers was factually insufficient in terms of the specificity required under RCW 29.82.010 to establish a prima facie case of misfeasance, malfeasance, or violation of the oath of office.
Citizens v. Dep't of Corr., 117 Wn.App. 411 (7/1/03) - [Public Disclosure/Offender Addresses] - Even if the Department of Corrections had a legal reason for withholding "personal information" of offender addresses under RCW 42.17.310(1)(a), it nevertheless violated the Public Disclosure Act by failing to name and recite its justification for withholding the information.
Edmonds Shopping Center v. Edmonds, 117 Wn. App. 344 (6/29/03) - [Mini-Casinos/Cardrooms] - A city's prohibition of card rooms is a valid exercise of the city's police power authority under article 11, section 11 of the state constitution. Furthermore, the prohibition is a reasonable means to achieve a legitimate public purpose, particularly since a statute (RCW 9.46.295 specifically authorizes cities and counties to absolutely prohibit any particular type of gambling activity, such as cardrooms. The court, however, held that the city was preempted by state law from requiring the phasing-out of existing cardrooms, with the result that the plaintiff is immediately affected by the prohibition. The ordinance had provided, among other restrictions, that existing cardrooms would be considered a legal nonconforming use but that they would have to cease operations five years after enactment of the ordinance. The court determined that the phase-out requirement and other interim restrictions changed the scope of issued gambling licenses and were thus preempted by RCW 9.46.295. Finally, the court rejected the plaintiff's claim that the prohibition would violate its vested rights, holding that the vested rights doctrine does not exempt a development "from later-enacted police power regulations in furtherance of a legitimate public goal."
Vance v. Thurston County Comm'rs, 117 Wn.App. 660 (6/24/03) - [Public Disclosure] - The county did not violated the public disclosure act by designating a single employee to respond to a request made to separate county agencies.
City of Seattle v. Crispin, 149 Wn.2d 896 (6/19/03) - [Boundary Line Adjustment/Exemption from Subdivision Statutes] -- The division of land made for the purpose of alteration by adjusting boundary lines which does not create additional lots is exempt from the requirements of ch. 58.17 RCW governing land division and is a legally created lot. The fact that a buildable site is created does not prevent application of the boundary line adjustment exemption found at RCW 58.17.040(6).
1992 Honda Accord, 117 Wn. App. 510 (6/19/03) – [Impoundment/Municipal Ordinance] – A municipality's authority to impound a vehicle drives from RCW 46.55.240, which provides that whenever a driver of a vehicle is arrested for an enumerated offense, such as driving with a suspended license, "the vehicle is subject to discretionary impoundment rather than mandatory impoundment.
Land Title of Walla Walla v. Martin, 117 Wn.App. 286 (6/19/03) - [Mandamus/Statutory Duty of Auditor] - RCW 65.04.090 requires a county auditor, upon request, to deliver a recorded document to the address that appears on the face of the document. An auditor can be compelled by mandamus to fulfill this statutory duty.
Iverson v. Snohomish County, 117 Wn.App. 618 (6/16/03) - [Industrial Welfare/Meal Periods] - So long as the county pays for his meal time, an employee of the corrections department is not entitled to additional compensation for his meal periods even though he is required to remain at his post and perform numerous duties.
City of Tacoma v. Mary Kay, Inc., 117 Wn. App. 111 (5/28/03) - [B & O Taxes/Jurisdiction of Court] - A county superior court lacks jurisdiction to review a hearing examiner's decision unless a complaint or a writ is filed; a notice of appeal is not sufficient to invoke the court's original jurisdiction.
Feature Realty, Inc. v. Spokane, 331 F.3d 1082 (9th Cir., 5/7/03) - [Open Meetings/Executive Session] - Action taken in executive session by a city council to approve a settlement agreement (a "collective positive decision") is beyond the scope of action that may be taken in executive session under RCW 42.30.110(1)(i) for discussion of litigation, potential litigation, or enforcement actions.
Woods v. Bailet, 116 Wn.App. 658 (4/21/03) - [Municipal Corporations/Public Health Authority/Nonclaim Statutes] - A public health authority is a "local governmental entity" subject to the statutory claim-filing requirement, RCW 4.96.010.
Wood v. Thurston County, 117 Wn.App. 22 (4/9/03) - [Public Disclosure/Receipt of Request/Show Cause Hearing] - The factual question of whether the county received a public disclosure request is properly decided in a show cause hearing pursuant to RCW 42.17.340.
Allstot v. Edwards, 116 Wn.App. 424 (4/3/03) - [Public Employment/Constructive Discharge] - A public employee who is fired for cause is not required to seek a civil service remedy before seeking redress in court for the claim of wrongful constructive discharge.
Grundy v. Brack Family Trust, 116 Wn.App. 625 (3/18/03) - [Shoreline Management/Nuisance] - In this case a property owner tried to have her neighbors' seawall declared a public and private nuisance on the basis that the permit allowing the seawall to be raised was invalid because it was exempted from obtaining a shoreline substantial development permit. Because the plaintiff failed to challenge the county's decision to issue the permit under LUPA, the plaintiff was precluded from establishing invalidity as a basis for her nuisance claim.
Leonard v. Pierce County and the City of Lakewood, 116 Wn.App. 60 (3/4/03) - [Street Vacation/Nonuse] - RCW 36.87.090, which provides that a county road that remains unused by the public for a period of five years after an order is made or authority is granted for its opening is deemed to be vacated unless the road was dedicated in a plat, does not preclude the rededication of a previously vacated road. Where a road is vacated under the statute and title has reverted to an abutting property owner, the property owner remains free to rededicate the road, in which case the road is subject to the dedication exception to the vacation requirement under RCW 36.87.090.
City of Redmond v. Hearings Bd., 116 Wn. App. 48 (3/3/03) - [Presumption of Validity/Agricultural Lands] - When reviewing a challenge to a zoning ordinance, a growth management hearings board must presume the comprehensive plans and development regulations are valid and the challenger has the burden of establishing otherwise. Because the land at issue in this case was never property designated for agricultural use; consequently, the urban recreational designation established by the city is valid.
Beuhler v. Small, 115 Wn. App. 914 (2/27/03) - [Public Disclosure/Judge's Personal Notes] - In this case a criminal defense attorney sought to compel a superior court judge to provide access to the judge's computer files in which the judge kept notes and records from past sentencings. The court determined that a judge's notes are not public simply because the judge is an elected official. There is no legal basis to require disclosure of a judge's subjective thought processes.
A judge's notes supplement the judge's thought processes and are a voluntary piece of work completed by the court for its own convenience.
Douglass v. Spokane County, 115 Wn. App. 900 (2/27/03) - [ULID Assessments] - Facts show that plaintiff's property was not specially benefited by a sewer service extension beyond the lines serving property; consequently, assessments should be annulled.
Oyster Growers v. Moby Dick Corp., 115 Wn.App. 417 (2/7/03) - [Shoreline Substantial Development Permit/Concomitant Rezone Agreement] - Because the applicant obtained a shoreline substantial development permit that was not appealed at the time of issuance, collateral estoppel bars a later action to prevent expansion under the permit. A concomitant rezone agreement that is consistent with a county's comprehensive plan and will advance the public interest is not a spot zone.
W. Hill, L.L.C. v. City of Olympia, 115 Wn.App. 444 (2/7/03) - [Preliminary Plat Approval/Large Lot Exemption] In this case the City of Olympia denied an application for preliminary plat approval based on an alleged violation that occurred in 1980 when property was divided into four parcels within five years of the original subdivision. The court determined that the city should process the application because the hearing examiner's decision ignored the large lot exemption created by RCW 58.17.040(2) and OMC 13.32.020(6).
HJS Development, Inc. v. Pierce County, 148 Wn.2d 451 (1/23/03) - [Preliminary Plat Approval/Revocation] - Cities and counties have authority under state subdivision law to revoke preliminary plat approvals if a local ordinance provides that authority. "[W]hen conditions of approval of a preliminary plat cannot be satisfied or are deliberately violated, remedial action, such as revocation, may be the only remedy."
City of Sumner v. Walsh, 148 Wn.2d 490 (1/23/03) - [Juvenile Curfew Ordinances] - In a 5-4 decision the court ruled that Sumner's curfew ordinance was unconstitutionally vague because "it does not provide 'ascertainable standards for locating the line between innocent and unlawful behavior'."
Harrison v. Stevens County, 115 Wn. App. 126 (1/21/03) - [Mineral Rights/Short Plat/Ownership Interest] - When mineral rights have been reserved or granted to another, the title to the surface and the mineral rights are severed, and possession, or ownership, of the surface becomes separate and distinct from ownership of the mineral rights after severance. Consequently, ownership of mineral rights does not affect the passing of title to the surface estate or the subdivision of the surface estate.
Armen Yousoufian v. Office of Ron Sims, 114 Wn. App. 836 (1/6/03) - [Public Disclosure/Delay/Negligent Response] -- The court found fault with the county's failure to respond in a timely manner and to properly coordinate disclosure responses by different departments. The court analyzed RCW 42.17.340(4) dealing with attorney fees and penalties, finding that certain deductions from requested attorney fees were proper, but remanded the case to the trial court for imposition of penalties that exceeded the minimum statutory amount. When dealing with attorney fee or penalty issues, review this decision carefully. (Supreme Court decision)