Davidson Serles & Associates v. City of Kirkland

• Decision Date: 24 January 2011
• Docket Number: 64171–9–I,Nos. 64072–1–I,64751–2–I.,s. 64072–1–I
• Court: Washington Court of Appeals
• Parties: DAVIDSON SERLES & ASSOCIATES, a Washington General Partnership, Appellant,v.CITY OF KIRKLAND, a municipal corporation; Touchstone Corporation, a Washington corporation; Touchstone KPP Development, LLC, a Delaware Limited Liability Company, Respondents,Rhoda Altom; RC Hart, LLC, a Washington Limited Liability Company; Park View Plaza Association, LLC, a Washington Limited Liability Company; and John Doe I–X, Defendants,TR Continental Plaza Corp., a Delaware corporation, Appellant.

159 Wash.App. 616

246 P.3d 822

DAVIDSON SERLES & ASSOCIATES, a Washington General Partnership, Appellant,

v.CITY OF KIRKLAND, a municipal corporation; Touchstone Corporation, a Washington corporation; Touchstone KPP Development, LLC, a Delaware Limited Liability Company, Respondents,Rhoda Altom; RC Hart, LLC, a Washington Limited Liability Company; Park View Plaza Association, LLC, a Washington Limited Liability Company; and John Doe I–X, Defendants,TR Continental Plaza Corp., a Delaware corporation, Appellant.

Nos. 64072–1–I

64171–9–I

64751–2–I.

Court of Appeals of Washington, Division 1.

Jan. 24, 2011.

Jeffrey M. Eustis, Aramburu & Eustis, David S. Mann, Gendler & Mann LLP, Seattle, WA, for Appellant.Robin Jenkinson, Marc Worthy, City Attorney Ofc. of Att. Gen., Kirkland, WA, George R. Hill, McCullough Hill PS, Seattle, WA, for Respondents.DWYER, C.J.

[159 Wash.App. 621] ¶ 1 The Growth Management Hearings Board has exclusive jurisdiction to review challenges to comprehensive plans and development regulations that are based on the State Environmental Policy Act (SEPA), chapter 43.21C RCW. Thus, a superior court lacks subject matter jurisdiction to review such challenges. Several of the appellants' claims herein can properly be raised only before the Growth Management Hearings Board. Accordingly, those claims were properly dismissed by the superior court on summary judgment.

¶ 2 Moreover, the appellants' challenge to the planned action ordinance adopted by the City of Kirkland was also properly dismissed. The appellants' only claim challenging the validity of the planned action ordinance was that the City of Kirkland's environmental impact statement (EIS) was inadequate. However, no EIS was required for the City of Kirkland to enact the planned action ordinance, and, thus, an inadequate EIS could not form the basis of a claim challenging the planned action ordinance. Thus, dismissal was appropriate.

¶ 3 The trial court erred, however, by granting summary judgment on the appellants' spot zoning claim because the moving parties failed to timely raise the spot zoning issue in the summary judgment proceeding. Accordingly, we affirm in part and reverse in part the trial court's order granting summary judgment.

I

¶ 4 Touchstone Corporation and Touchstone KPP Development, LLC (collectively Touchstone) own an 11.5 acre site in downtown Kirkland known as Kirkland Parkplace. In April 2007, Touchstone and two other landowners applied to the City of Kirkland (the City) to amend the City's comprehensive plan and zoning code to allow taller building heights, among other changes. The City then sponsored a proposal to adopt an ordinance establishing the area containing the three properties as a planned action area.

¶ 5 The City conducted a review of the environmental impacts of the proposed amendments and enactments. In April 2008, the City issued a draft EIS that evaluated only the proposed action and a “no action” scenario; it did not evaluate any alternative actions. In October 2008, the City issued the final EIS. The final EIS contained one alternative action, which was merely a slightly modified version of the proposed action.

¶ 6 The City then enacted several ordinances implementing the landowners' and the City's proposals. The City amended its comprehensive plan through Ordinance No. 4170. The City amended its zoning code through Ordinance No. 4171. The City also enacted Ordinance No. 4173 and Ordinance No. 4174 in order to amend other portions of the comprehensive plan and the zoning code. In addition, the City enacted Ordinance No. 4172, which adopted design guidelines, and Ordinance No. 4175, which created a planned action area.

¶ 7 Davidson Serles & Associates and TR Continental Plaza Corp., property owners with land neighboring Touchstone's Parkplace property to the southeast, each filed petitions for review with the Central Puget Sound Growth Management Hearings Board (the Board), challenging the enactment of the comprehensive plan and zoning code amendments contained within Ordinances No. 4170 and No. 4171. They did not challenge the validity of the other four ordinances before the Board. Davidson Serles also brought suit directly in the superior court against the City and Touchstone, challenging Ordinances No. 4170, No. 4171, No. 4172, and No. 4175.

[159 Wash.App. 623] ¶ 8 Davidson Serles' complaint states that

The Court has jurisdiction over this matter under the Uniform Declaratory Judgments Act, Ch. 7.24 RCW to determine questions of construction and validity of city ordinances, under Ch. 7.40 for the issuance of injunctive relief, under the grant of jurisdiction to superior courts through Article IV, Section 6 of the Washington State Constitution, and in the alternative under Chapter 36.70C RCW.

Clerk's Papers (CP) at 2. The complaint challenges both the legal adequacy of the EIS and the actions taken in reliance upon the EIS—namely, the enactment of the ordinances. The complaint recites that Davidson Serles' interests are adversely affected by the developments, projects, activities, and other actions authorized by the ordinances because they will cause “increased motor vehicle traffic and congestion, by creating pressures for spillover parking, ... and by blocking light, air and views to and from its property, thereby interfering with the use and enjoyment of its property and rendering it a less desirable place to work.” CP at 3.

¶ 9 The complaint alleges that “[a] planned action ordinance, and other legislation significantly affecting the environment, may only be lawfully enacted upon the preparation and adoption of a legally adequate EIS.” CP at 7. The complaint then asserts that “[t]he City of Kirkland has acted in violation of the requirements of [SEPA]” by preparing an EIS that does not satisfy SEPA's requirements and by adopting the ordinances. CP at 7–8. In addition, the complaint asserts that by

singling out that separate ownership from the larger [zoning area] and creating for that ownership special planning and zoning classifications ... whose requirements ... are totally different from and inconsistent with the requirements for surrounding lands ... the City Council has acted arbitrarily and unreasonably by bestowing special favors upon an individual property owner, by failing to act in the interest of the public at large and by engaging in spot zoning.

CP at 7–8. The complaint then requests that the superior court declare that the City's EIS fails to meet SEPA's requirements and that any actions taken in reliance upon the EIS, including the planned action ordinance, are null and void. TR Continental Plaza brought a complaint in superior court setting forth very similar allegations. The cases were consolidated in the superior court.

¶ 10 Touchstone moved for summary judgment, contending, among other things, that the superior court lacked subject matter jurisdiction over those matters that are properly raised only before the Board and that the plaintiffs' challenge to the planned action ordinance was an “orphan” SEPA appeal that challenged the EIS without challenging an underlying governmental action as required by SEPA. The City joined in Touchstone's motion.

¶ 11 In their response to the motion for summary judgment, Davidson Serles and TR Continental Plaza noted that, even were the superior court to grant the defendants' motion for summary judgment, the plaintiffs' spot zoning claim would remain. Nevertheless, the superior court granted the motion for summary judgment on the basis of lack of jurisdiction, dismissing all of the plaintiffs' claims.

¶ 12 Both Davidson Serles and TR Continental Plaza separately appealed from the trial court's order granting summary judgment, and their appeals were consolidated. For the sake of brevity, we will refer to these parties collectively as “Davidson.”

II

¶ 13 We review de novo summary judgment decisions. Boss v. Wash. State Dep't of Transp., 113 Wash.App. 543, 547–48, 54 P.3d 207 (2002). Summary judgment is appropriate where the evidence, viewed in favor of the nonmoving party, shows that there is no issue of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c); Schaaf v. Highfield, 127 Wash.2d 17, 21, 896 P.2d 665 (1995). On summary judgment review, we may affirm the trial court's decision on any basis within the record. LaMon v. Butler, 112 Wash.2d 193, 200–01, 770 P.2d 1027 (1989).

III

¶ 14 Davidson first contends that the trial court erred by dismissing several of Davidson's claims on the basis that the superior court lacked subject matter jurisdiction over the claims because the Board has exclusive jurisdiction over such challenges. The trial court was correct.

¶ 15 “Growth management hearings boards have exclusive jurisdiction to determine compliance with the [Growth Management Act].” Stafne v. Snohomish Cnty., 156 Wash.App. 667, 682, 234 P.3d 225 (2010) (citing Woods v. Kittitas Cnty., 162 Wash.2d 597, 614–15, 174 P.3d 25 (2007)). RCW 36.70A.280 sets forth the matters subject to review by the Growth Management Hearings Board. The statute provides, in pertinent part:

The growth management hearings board shall hear and determine only those petitions alleging either:

(a) That, except as provided otherwise by this subsection, a state agency, county, or city planning under this chapter is not in compliance with the requirements of this chapter, chapter 90.58 RCW as it relates to the adoption of shoreline master programs or amendments thereto, or chapter 43.21C RCW as it relates to plans, development regulations, or amendments, adopted under RCW 36.70A.040 or chapter 90.58 RCW.

RCW 36.70A.280(1). The Growth Management Act (GMA), chapter 36.70A RCW, “clearly contemplates that challenges to comprehensive plan amendments [and development regulations] must be brought before the [Board].” Coffey v. City of Walla Walla, 145 Wash.App. 435, 441, 187 P.3d 272 (2008). Where a challenge is within the...