Baumgardner v. Town Of Ruston

• Citation: 712 F.Supp.2d 1180
• Decision Date: 28 April 2010
• Docket Number: Case No. C09-5151RJB.
• Parties: David BAUMGARDNER, an individual' Gimme Five D, LLC, a Washington State limited liability company; and Commencement View, LLC, a Washington State limited liability company, Plaintiffs,v.TOWN OF RUSTON, a fourth class municipal corporation; Michael Transue, individually and in his former official capacity as Ruston Mayor; Huitt-Zollars, Inc., a Texas corporation, and Carl Stixrood, individually and in his official capacity as Ruston Town Planner, Defendants.
• Court: U.S. District Court — Western District of Washington

712 F.Supp.2d 1180

David BAUMGARDNER, an individual' Gimme Five D, LLC, a Washington State limited liability company; and Commencement View, LLC, a Washington State limited liability company, Plaintiffs,v.TOWN OF RUSTON, a fourth class municipal corporation; Michael Transue, individually and in his former official capacity as Ruston Mayor; Huitt-Zollars, Inc., a Texas corporation, and Carl Stixrood, individually and in his official capacity as Ruston Town Planner, Defendants.

Case No. C09-5151RJB.

United States District Court,

W.D. Washington,

at Tacoma.

April 28, 2010.

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Joan K. Mell, III, Branches Law PLLC, Fircrest, WA, for Plaintiff.

John Turner Kugler, Burgess Fitzer, Tacoma, WA, Carol A. Morris, Morris & Taraday, Seabeck, WA, Amber L. Hardwick, Kenneth G. Yalowitz, Green & Yalowitz, Seattle, WA, for Defendant.

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

ROBERT J. BRYAN, District Judge.

This matter comes before the Court on Defendants Town of Ruston and Michael Transue's Motion for Summary Judgment Re: Federal Claims (Dkt. 64), Plaintiffs' Motion for Partial Summary Judgment (Dkt. 63), Defendants Huitt-Zollars and Carl Stixrood's Motion for Summary Judgment (Dkt. 57), Defendants Town of Ruston and Michael Transue's Motion for Summary Judgment Re: State Claims (Dkt. 65), Defendants Huitt-Zollars and Carl Stixrood's Joinder in Ruston and Transue's Motion for Summary Judgment (Dkts. 78 and 79), Plaintiffs' Motion to Strike Defendants Huitt-Zollars and Carl Stixrood's Editorial Exhibits 1 and A-C (Dkt. 106), and Defendant Ruston and Transue's motion to strike (Dkt. 95). The Court has considered the pleadings filed in support of and in opposition to the motions and the file herein.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. FACTS

This matter centers around undeveloped property located at 5000 North Orchard Street in Ruston, Washington. Dkt. 1. The property is on the west side of North Orchard Street, and so, is in Ruston. Dkt. 74, at 2. North Orchard Street is bordered on the east by Tacoma, Washington. Dkt. 67, at 2. It is an eighteen foot wide paved roadway with curbs and gutters on the Ruston side, but not on the Tacoma side. Dkt. 67, at 2. The whole of North Orchard Street in the subject area is controlled by Ruston. Id. There is no storm water catchment system for North Orchard. Id.

1. Plaintiffs and Plaintiffs' Tacoma Property on North Orchard Street

Plaintiff David Baumgardner is a real estate developer. Dkt. 1, at 5. He is the managing member of the two Washington limited liability companies-Gimme Five D, LLC and Commencement View, LLC-that are named as Plaintiffs in this case. Id. In 2005, Commencement View, LLC, purchased 10 acres of land on the Tacoma side of North Orchard Street. Dkt. 68, at 3. The property was on a “bluff and down along the railroad tracks on Ruston Way,” and “is part of the ASARCO ‘Super Fund’ EPA jurisdiction.” Dkt. 68, at 4. Three view lots were developed on top of the Tacoma side of the bluff. Dkt. 68, at 4. Plaintiffs eventually purchased the subject property which in on the Ruston side of North Orchard Street. Dkt. 77-4, at 5. In order to get utilities to Plaintiffs' North Orchard properties (those both within Ruston and Tacoma city limits), Plaintiffs need to get a permit from Ruston. Dkt. 58-4, at 28.

2. Ruston

Ruston has a total population of 750 people and occupies about 5 blocks. Dkts. 69, at 2; 73, at 3. The mayor is Ruston's land use official. Dkt. 73, at 3. None of the few people that work for Ruston have any land use experience. Dkt. 69, at 2. In 1995, Ruston contracted with Richard Carothers & Associates (“Carothers”) for land use planning related services. Dkt. 69, at 2. Defendant Carl Stixrood worked for Carothers when the contract was awarded, and was involved in the bidding and selection process. Dkt. 77-2, at 5-7. The contract, referred to as “Consulting Agreement,” provided that Carothers, referred to as the “consultant,” would perform “planning, civil engineering, landscape architecture and surveying services in connection with the general and specific projects by written task order.” Dkt. 66-4, at 2. The consultant was to “perform all services and provide all work product ... within the time limit shown on the specific task order from the date written notice is given to proceed, unless an extension of such time is granted in writing.” Dkt. 66-4, at 5. Payment was not to exceed “the amount provided on each specific task order.” Dkt. 66-4, at 2. The consultant was to secure a general liability insurance policy, and name Ruston as an insured. Dkt. 66-4, at 3. The consultant was to “perform its obligations with a high degree of professional skill and diligence.” Dkt. 66-4, at 3. The contract provides for attorneys fees and costs to a prevailing party who prevails in a suit against the other for enforcement of the contract. Dkt. 66-4, at 4.

Ruston charges fees for land use application review pursuant to RCW 82.02.020. Dkt. 69, at 2. The Ruston Municipal Code provides that Ruston's fees are $150.00 plus consultant and staff costs over one hour. Ruston Municipal Code (“RMC”) 1.14.050, in the record at Dkt. 58-4, at 39-37. According to former Ruston Mayor Kim Wheeler, developers have no administrative remedies to challenge fees charged. Dkt. 73, at 9-10.

In 1998, Carothers merged with Defendant Huitt-Zollars, Inc. (“HZ”). Dkt. 69, at 2. According to both HZ and Defendant former Ruston Mayor Michael Transue, who was in office from 1997-2002 and from 2006-2008, HZ assumed Carother's responsibilities under the Consulting Agreement. Dkts. 59, at 2; 58-4, at 6-7; 58-4, at 59-60. Mr. Stixrood was the land use planner, employed first by Carothers and then by HZ, to review land use applications for Ruston. Dkt. 59, at 2. He testified that he was not free to rewrite regulations or make proposals to the mayor or council. Dkt. 58-4, at 4. He testified that he and the other HZ staff members would perform town planning services on an “on-call” or “as directed” basis, but did not come up with projects like a traditional town planner would. Dkt. 58-4, at 4-5. Mr. Stixrood testified that he did most of the work for Ruston. Dkt. 58-4, at 6. As Mayor, Defendant Transue testified that he did not feel that Mr. Stixrood was an employee of Ruston, but just a consultant. Dkt. 48-4, at 49.

Mr. Stixrood testified, that in practice, some of the town-initiated projects used task orders, but they were not used for developer's applications. Dkt. 77-2, at 7. Mr. Stixrood testified that he believed the rates that HZ charged were in line with the industry standard. Dkt. 77-2, at 9-11. He stated that he would record his time as he was doing the work, and put it in a timesheet at the end of the week. Dkt. 66-37, at 19.

Kevin Foley, Plaintiffs' engineer, stated that he had attended several meetings and Mr. Stixrood did not do a good job of controlling the Town Council meetings or the Planning Commission meetings. Dkt. 58-4, at 28-30. Mr. Foley observed that Mr. Stixrood did not try to bring the members back to what they were supposed to be talking about. Dkt. 58-4, at 28-30.

Mr. Stixrood states that HZ billed Ruston for its services monthly. Dkt. 59, at 2. Ruston's Town Council approved the bills, and the Town Clerk paid HZ's bills monthly. Dkts. 58-4, at 53 and 97, at 4. Ruston generally did not bill an applicant until the review process was complete. Dkt. 59, at 2.

3. Subject Property-Ruston Side of North Orchard Street

In April of 2005, Joellen Lewtas Jungers, one of the then owners of the subject property, contacted Mr. Stixrood. Dkt. 59, at 2. Mr. Stixrood states that he advised her about the process and possible fees associated with vacating a portion of Court Street, which abutted the subject property. Dkt. 59, at 2. He estimated that the cost to have Court Street vacated would be around $2,000 to $4,000. Dkt. 59-2, at 13.

On June 3, 2005, Mr. Stixrood recommended to the Ruston Town Council that a portion of Court Street be vacated, and that a cul-de-sac, at the end of Court Street for emergency vehicle turn around, was “desirable.” Dkt. 59-2, at 21. The Town Council decided a study session was needed, and directed Mr. Stixrood to examine alternative methods of accommodating an emergency vehicle turnaround. Dkt. 59-3, at 2. Mr. Stixrood testified that he drafted different possible lot configurations (assuming that every piece of ground that could be developed would be developed and nothing else would hinder development), and possible emergency vehicle accesses. Dkt. 58-4, at 14. He drafted “A Supplemental Staff Report,” reviewed several options, and recommended that a “fire access loop road” was the best option to provide emergency vehicle access. Dkt. 59-3, at 5-11. He then drafted the Town of Ruston Ordinance 1172, which vacated the contemplated portion of Court Street subject to the condition that a loop turnaround be built. Dkts. 59, at 3; 59-3, at 12-14. Ordinance 1172 was signed by the Mayor of Ruston in July of 2005. Dkt. 59-3, at 12-14.

In September of 2005, Mr. Baumgardner made offered $850,000 for the North Orchard Street Ruston property, contingent on a feasibility study on whether the property could be developed. Dkt. 58-2, at 27. Originally, Mr. Baumgardner and the sellers contemplated November 26, 2005, as the deadline for Mr. Baumgardner's feasibility review. Dkt. 58-2, at 8. This deadline was extended to December 23, 2005, and again to January 17, 2006. Dkt. 58-2, at 9-10. Before he bought the Ruston property, the prior owners gave Mr. Baumgardner the drawings Mr. Stixrood did for Ordinance 1172, which indicated that nine to twelve lots could be developed on the subject property. Dkt. 68, at 5.

On December 30, 2005, Mr. Baumgardner contacted Mr. Stixrood regarding the subject property and inquired about substituting a cul-de-sac for the loop turnaround required in...