Demarest v. City of Leavenworth

• Decision Date: 27 June 2012
• Docket Number: No. CV–11–0072–JLQ.,CV–11–0072–JLQ.
• Citation: 876 F.Supp.2d 1186
• Parties: Stephen H. DEMAREST and Deborah A. Demarest, husband and wife, Plaintiffs, v. CITY OF LEAVENWORTH, a municipal corporation, Defendant.
• Court: U.S. District Court — District of Washington

876 F.Supp.2d 1186

Stephen H. DEMAREST and Deborah A. Demarest, husband and wife, Plaintiffs,

v.CITY OF LEAVENWORTH, a municipal corporation, Defendant.

No. CV–11–0072–JLQ.

United States District Court, E.D. Washington.

June 27, 2012.

Stephen H. Demarest, Leavenworth, WA, pro se.

Deborah A. Demarest, Leavenworth, WA, pro se.

Michael C. Walter, Amanda Gabrielle Butler, Keating Bucklin & McCormack, Inc., Seattle, WA for Defendant.

MEMORANDUM OPINION and ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JUSTIN L. QUACKENBUSH, Senior District Judge.

I. INTRODUCTION

“Leavenworth, that Bavaria-inspired jewel of Washington State's Cascade Mountains, has become a favorite autumn tourist attraction ... By car and bus load until the last bright lea flutters down, visitors will be converging on the little Icicle Creek town which pulled itself up by its boot straps a few years ago and emerged as an ‘all-America city’ much honored in national civic improvement competition.”

The Seattle Post Intelligencer, September 23, 1973

Steven Demarest, an attorney licensed to practice in the state of Washington, brings this action on behalf of himself and his marital community, appearing pro se, seeking to have this court declare various City of Leavenworth sign code sections (LMC) to be in violation of the First Amendment of the United States Constitution. While the challenges appear to be blanket, specifically Demarest challenges the requirement of LMC 14.040, 170, and 180 that the design, lettering style, and color of signs be compatible with the “Old World Bavarian–Alpine theme” (hereafter “the Bavarian theme”). None of the challenged Code provisions contain any restrictions on the actual message content of the sign.

Demarest is no stranger to legal challenges to municipal actions and codes and the consequences for bringing meritless lawsuits. See Brigade v. Economic Development Bd. for Tacoma–Pierce County, 61 Wash.App. 615, 811 P.2d 697 (1991).

In 2007 the Demarests purchased commercial property in the City of Leavenworth, Washington. Almost immediately, Demarest refused to comply with the City's Municipal and Sign Codes on multiple occasions. On February 10, 2011, the Demarests filed this action in Chelan County Superior Court, appearing pro se, alleging that the applicable Codes violated the United States Constitution. The City removed the case to this court and answered the Complaint denying all liability. Mr. Demarest is not admitted to practice in this court, although he is still an active member of the Washington State Bar Association.

On November 10, 2011 the parties stipulated to the dismissal of Plaintiffs' claims asserted in the initially filed Complaint (ECF No. 1) which were based upon the City's former sign code. Plaintiffs were granted leave to file an Amended Complaint, asserting only claims relating to the newly enacted Leavenworth Sign Code which became effective on September 13, 2011. The Amended Complaint, filed on November 10, 2011, seeks only injunctive and declaratory relief. Plaintiffs challenge the constitutionality of sections of the Leavenworth Municipal Code (LMC), specifically LMC 2.38 (Design Review Board); LMC 21.11 (“Appeals”); LMC 21.15 (“Hearing Examiner”); LMC 5.21 (on hawking); LMC 14.10 (Sign Code); and LMC 14.08 (“Old World Bavarian Architectural Theme”). In addition, Plaintiffs challenge the Design Review Board Bylaws. The Plaintiffs' specific causes of action are described in detail below.

Following oral argument the court has before it the cross-summary judgment motions of the parties (ECF Nos. 63, 68) on the Demarests' claims. The City contends that its code provisions are constitutional, and serve to strengthen the Bavarian theme that has “put the City of Leavenworth on the map” and also further the City's substantial interests of aesthetics, tourism, and economic vitality. The Demarests contend the LMC is unconstitutional and that the Bavarian theme and the City Sign Code are commercially “burdensome, costly, and deprives [them] of message choice.”

For the reasons which follow, the court GRANTS the City's Motion for Summary Judgment (ECF No. 68) and DENIES Plaintiffs' cross-motion.

II. SUMMARY JUDGMENT STANDARD

The court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable fact-finder to return a verdict for the nonmoving party. Id. When parties submit cross-motions for summary judgment, as here, the court must consider each motion on its own merits. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001). In addressing the parties' cross-motions for summary judgment, the court must draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nevertheless, the non-moving party “may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Id. at 248, 106 S.Ct. 2505. Factual assertions in the moving party's affidavits may be accepted as true unless the opposing party submits its own evidence to the contrary.

III. DEFENDANT'S MOTIONS TO STRIKE

Defendant has filed two Motions to Strike requesting that the court strike the majority of Plaintiffs' evidence filed in support and in response to the Summary Judgment Motions. The evidentiary objections are primarily line by line objections to Mr. Demarest's declarations (and exhibits therein referenced) based upon hearsay, improper legal conclusion or argument, lack of foundation, and relevance. To the extent evidentiary material submitted by either party is inadmissible or irrelevant, the court, as a matter of course, has not factored that material into this decision.Accordingly, the court need not rule on the Defendant's line by line objections.

IV. FACTSA. Development of the City of Leavenworth as a Tourist Destination

The City of Leavenworth is a code city (operating under the State of Washington Optional Municipal Code, (RCW ch. 35A)) located in Chelan County, Washington, at the base of the eastern slopes of the Cascade Mountains. The town's elevation is 1100 feet, with surrounding rivers, canyons, and mountains rising to 8,000 feet nearby. The City operates under a mayor/council form of government. It was incorporated in 1906, and has a current population of approximately 2,000.

The record establishes that Leavenworth developed rapidly as a railroad and lumber town in the early 1900's, reaching a peak population between 1903 and 1913 of nearly 6,000. After the closures of local lumber mills and re-routing of the railroad in the 1920s, jobs and businesses disappeared from the area. The economic downturn threatened to ruin Leavenworth. The revitalization of the City began in 1962. City residents began working with the University of Washington Bureau of Community Development and formed a committee called Leavenworth Improvement for Everyone (L.I.F.E.). Ted Price and Bob Rodgers were drawn to the area by its natural beauty and became owners of an area restaurant and motel with a Bavarian theme. They were involved in the LIFE tourism committee and promoted the idea of an Alpine theme for the town. Ted Price believed the town could succeed as a tourist destination, and “wouldn't [let the idea] rest until it was realized in every minute detail,” because he believed design was key to the theme's success ECF No. 73, Ex. A. at xvii, 46, 173. The idea of the theme was not derived from the actual heritage of its community members. It was intended as a means to promote tourism to revitalize the City's economy.

In 1965, Hotel Edelweiss was the first building to remodel to reflect a Bavarian theme. Others followed, voluntarily transforming business store fronts to a Bavarian-style. In 1971, the City Council adopted its first Old World Bavarian Theme ordinance. Beautification projects and festivals developed. Today, the City is a pillar of tourism in the Pacific Northwest. The record states that some two million tourists annually visit Leavenworth and that festival attract as many as 50,000 tourists on a weekend. It is undisputed that the City's considerable tourist industry is an (if not the) integral component of the City's economy. In 2010, the City's businesses generated $107 million dollars in total sales, as compared to neighboring and comparable cities of Cashmere ($31 million), Skyhomish ($16 million), and Gold Bar ($10 million). It is also undisputed that the Bavarian character of the City plays a special role in the City's charm, character, and economic vitality. The City relies upon the Bavarian theme as a means to attract tourists and commerce. Visitors are often drawn to the central commercial district which includes a pedestrian area on Front Street.

B. Plaintiffs' Commercial Building

In 2007, Plaintiff purchased a building in the central commercial district of Leavenworth located at 321 9th Street. Shortly thereafter he commenced his ongoing challenges to the City's Bavarian theme and its related Ordinances and Codes. Numerous businesses operate within the building including inner-tube rentals, massage therapists, mental health counselors, consultants, general office, the Adventure Inn Hotel, and a beer garden (Der Hinterhof). The Adventure Inn Hotel and Der Hinterhof are owned and operated by the Plaintiffs. Plaintiffs' building is several hundred feet away from the Front Street core pedestrian area.

C. The Challenged Provisions of the City Code

The City's first codification of the Bavarian theme was regarding...