Church of the Divine Earth v. City of Tacoma, 49854-5-II

Citation426 P.3d 268
Decision Date05 September 2018
Docket NumberNo. 49854-5-II,49854-5-II
Parties CHURCH OF THE DIVINE EARTH, Appellant, v. CITY OF TACOMA, Respondent.
CourtCourt of Appeals of Washington

Richard B. Sanders, Carolyn A. Lake, Goodstein Law Group PLLC, 501 S G St., Tacoma, WA, 98405-4715 for Appellant

Margaret A. Elofson, City of Tacoma, 747 Market St. # 1120, Tacoma, WA, 98402-3726 for Respondent

PUBLISHED IN PART OPINION

Sutton, J.

¶ 1 The Church of the Divine Earth (Church) appeals a judgment in favor of the City of Tacoma (City) on the Church’s claim for damages under RCW 64.40.0201 and its claim for violation of the Public Records Act (PRA).2 The Church argues that some of the trial court’s findings of fact are not supported by substantial evidence. The Church also argues that the trial court erred by concluding that the City’s permit decision was not arbitrary or capricious and that the City did not know or should not have known that the court would ultimately determine that the building permit requirement it imposed was unlawful. The Church further argues that the trial court erred by concluding that the City’s search was adequate to comply with the PRA. In addition, the Church claims that the trial court erred by denying its motion to amend its complaint; by granting the City’s motion in limine; and concluding, after an in camera review, that the City properly exempted documents under the attorney-client privilege and the work product doctrine.

¶ 2 In the published portion of this opinion, we address the Church’s arguments regarding its RCW 64.40.020 damages claim. We hold that the trial court did not err in granting the City’s motion in limine, the trial court’s findings of fact are supported by substantial evidence, and the trial court did not err in concluding that the City was not liable under RCW 64.40.020. In the unpublished portion of this opinion, we address the Church’s remaining arguments. We affirm.

FACTS

¶ 3 On September 20, 2013, the Church, through its pastor Terry Kuehn, submitted a permit to build a parsonage on a piece of property that the Church had recently purchased. As part of the initial building permit process, the City’s planning employees conducted a review panel meeting to review the permit application. After the City’s employees reviewed the permit application, it imposed several conditions on the building permit, including a 30 foot right-of-way dedication. Shortly after the Church’s permit application was first reviewed by the City’s employees, Kuehn told City Senior Planner Shanta Frantz that the property would be used for church services. Frantz informed Kuehn that a conditional use permit would be required to use the property for church services. In October, Kuehn met with City employees and clarified that the property would not be used for church services but would be solely used as a parsonage. Kuehn also requested a waiver of all permitting conditions attached to the building permit for the parsonage.

¶ 4 Kuehn asserted that the conditions of the building permit violated the Church’s religious liberties. Because Kuehn continued to assert that the development of the property was exempt from conditions due to the property’s religious status, there was continued confusion over whether the property would be developed as a single family home (a parsonage) or as a church used for religious services.

¶ 5 In January 2014, the City held another review panel meeting to review the building permit conditions. After this meeting, Jennifer Kammerzell, a senior engineer in the City Public Works division, recommended that the right-of-way dedication be reduced from 30 feet to 8 feet. City Engineer Curtis Kingslover adopted Kammerzell’s recommendation that the dedication be reduced to 8 feet.

¶ 6 The Church continued to contest the conditions placed on the building permit. As a result, the directors of the three relevant City divisions (Public Works, Planning and Development Services, and Environmental Services) met to discuss the Church’s permit application and whether the permit conditions satisfied constitutional nexus and proportionality requirements under a Nollan / Dolan3 analysis. After this meeting, the three division directors decided to remove all conditions except for the eight foot right-of-way dedication. Peter Huffman, Director of Planning and Development Services, wrote a letter to Kuehn documenting the directors’ decision and designating the letter as a decision that could be appealed to the hearing examiner. The Church appealed to the hearing examiner.

¶ 7 The hearing examiner determined that the Church was challenging the dedication on constitutional grounds. Because the hearing examiner concluded that it did not have jurisdiction to decide constitutional issues, the hearing examiner granted the City’s motion for summary judgment. The Church then filed a Land Use Petition Act (LUPA)4 appeal with the superior court. At the LUPA appeal, the superior court concluded that the right-of-way dedication failed to satisfy the Nollan / Dolan nexus and proportionality requirements.

¶ 8 In October 2014, the Church submitted a PRA request to the City. The City provided approximately 3,500 pages of responsive documents. The City also provided approximately 200 pages of redacted documents and a privilege log that designated the documents as protected under the attorney-client privilege and the work product doctrine. The City closed the Church’s PRA request in January 2015. Later, the City learned that two responsive documents—a video recording of the property and two pages of notes from Frantz—had not been provided to the Church. When the City learned that the documents had mistakenly not been disclosed, it immediately provided the documents to the Church.

I. COMPLAINT AND AMENDMENTS

¶ 9 When the Church filed its LUPA petition, it also filed a claim for damages against the City under RCW 64.40.020. The Church later amended its complaint to add a claim for violations of the PRA. The parties agreed to bifurcate the LUPA petition and the Church’s claim for damages under RCW. 64.40.020 and his claims under the PRA.

¶ 10 After the Church’s LUPA petition was resolved, the Church moved to amend its complaint to include a claim for civil rights violations under 42 U.S.C. § 1983 and an additional damages claim based on offsite improvements, such as sidewalks and curbs, that the City had imposed after the first review panel meeting. The trial court denied the motion to amend the complaint, ruling:

Well, I think on the takings on the first one, that it’s a futile amendment. I don’t think it’s well taken, and so, yes, I would intend to deny it on its merits. The same on the 64.40 because my recollection of the record is that that wasn’t part of it. And in—that, meaning the sidewalks and the curbs at the time and in the posture that the case came to me.

Clerk’s Papers (CP) at 1092-93.

II. IN CAMERA REVIEW OF REDACTED DOCUMENTS

¶ 11 In response to the Church’s records request, the City submitted a privilege log identifying several documents that were redacted. The City asserted that the redacted documents were exempt under the attorney-client privilege and the work product doctrine. The trial court conducted an in camera review of approximately 200 pages of documents.

¶ 12 The documents can be summarized into the following groups:

Group 1 : Group 1 documents contain several email chains between the deputy city attorney, members of the review panel, and division directors discussing the appropriate way to address the Church’s asserted legal arguments against the City’s building permit conditions and the appropriate way to respond to the Church’s waiver request. These documents were exempted as attorney-client privilege.
Group 2 : Group 2 documents contain requests from the deputy city attorney for additional information about the dedication and cost of offsite improvements in order to prepare for arguments on the Church’s appeal of the permit decision. These documents were exempted as attorney-client privilege.
Group 3 : Group 3 documents contain emails between the deputy city attorney and members of the review panel addressing questions regarding responding to the Church’s records request. These documents were exempted as attorney-client privilege.
Group 4 : Group 4 documents contain emails from the deputy city attorney regarding draft pleadings and declarations with the drafts attached to the emails. These documents were exempted as work product.

Sealed Exhibit. After an in camera review, the trial court entered an order finding that all the documents were properly exempted under either the attorney-client privilege or the work product doctrine and sealed the documents.

III. MOTION IN LIMINE

¶ 13 Before trial, the City filed a motion in limine to exclude evidence that the right-of-way dedication requirement was for 30 feet rather than 8 feet. The City argued that the Church was prohibited from relitigating whether the dedication was 30 feet or 8 feet because the LUPA court had already found that the dedication was 8 feet. To support its motion, the City included the LUPA court’s order, which struck out the reference to the 30 foot dedication and replaced it with "8 foot dedication." CP at 1709-10.

¶ 14 The trial court granted the City’s motion in limine to exclude evidence offered for the purpose of disputing that the right-of-way condition at issue was eight feet. The trial court ruled that the LUPA court had already found that the right-of-way dedication was eight feet and res judicata applied. The matter proceeded to a bench trial.

IV. TRIAL TESTIMONY
A. DAMAGES CLAIM — RCW 64.40.020

¶ 15 Craig Kuntz is the Senior Planning Examiner for the City. Kuntz acted as the coordinator of the review panels for the Church’s building permit. A review panel "is a group of subject matter experts that place conditions on new developments." VII Verbatim Report of Proceedings (VRP) at 806. Kuntz testified that at the review planning meetings, the panel...

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1 cases
  • Church of the Divine Earth v. City of Tacoma
    • United States
    • Washington Supreme Court
    • 19 Septiembre 2019
    ...of Nollan / Dolan , it did not know and should not have known that its action was unlawful." Church of Divine Earth v. City of Tacoma, 5 Wash. App. 2d 471, 494, 426 P.3d 268 (2018). The Court of Appeals also awarded attorney fees to the City. The Church petitioned this court, and we granted......

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