Engley Diversified, Inc. v. City of Port Orchard
| Decision Date | 01 April 2016 |
| Docket Number | CASE NO. C11-5874 BHS |
| Citation | 178 F.Supp.3d 1063 |
| Parties | Engley Diversified, Inc. d/b/a Gotcha Covered Media, Petitioner/Plaintiff, v. City of Port Orchard, et al., Respondents/Defendants. |
| Court | U.S. District Court — Western District of Washington |
William John Crittenden, Michael J. Murphy, Groff Murphy Trachtenberg & Everard, PLLC, Seattle, WA, for Petitioner/Plaintiff.
David L. Force, Patrick McMahon, Carlson McMahon & Sealby PLLC, Wenatchee, WA, Carol A. Morris, Morris Law, Seabeck, WA, Robert Jason Henry, Lasher Holzapfel Sperry & Ebberson, Seattle, WA, for Respondents/Defendants.
This matter comes before the Court on Respondent/Defendant City of Port Orchard's (“City”) and Petitioner/Plaintiff Engley Diversified, Inc.'s (“Engley”) motions for summary judgment (Dkt. 85, 87). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby rules as follows:
I. PROCEDURAL HISTORY
On April 11, 2011, Engley filed a land use petition and complaint for damages against the City and others in Kitsap Superior Court for the State of Washington. C11-5324BHS, Dkt. 1, Exh A (“Engley I ”). In the petition, Engley challenged numerous issues including whether the City Council correctly determined that Engley's appeal of the local hearing examiner's decision was timely. Id . In the complaint, Engley sought damages under RCW Chapter 64.40 and 42 U.S.C. § 1983
. Id .
On July 7, 2011, the Court concluded that Engley's appeal was timely and that the City Council should have considered the merits of Engley's appeal. Id ., Dkt. 45. The Court remanded the matter for further consideration, entered judgment, and closed the case. Id .
On October 17, 2011, Engley filed another land use petition and complaint against the City and others in the Kitsap County Superior Court for the State of Washington. Dkt. 1-1 (“Engley II ”). In the petition, Engley sought review of a decision under the Washington Land Use Petition Act (“LUPA”), RCW Chapter 36.70C. Id . In the complaint, Engley sought damages under RCW Chapter 64.40 and 42 U.S.C. § 1983
. Id .
On October 24, 2011, the City removed the matter to this Court. Dkt. 1.
On September 12, 2012, the Court granted Engley's petition to reverse the City Council's “decision regarding the vesting of its permit applications.” Dkt. 63 at 1.
On January 26, 2016, the City filed a motion for summary judgment. Dkt. 85. On January 27, 2016, Engley filed a motion for summary judgment on his claims for civil rights violations and violations of RCW 64.40.020(1)
. Dkt. 87. Both parties responded. Dkts. 89, 90. Both parties replied. Dkts. 91, 92.
II. FACTUAL BACKGROUND
On March 25, 2010, Engley submitted six permit applications to the City for the erection of billboards on property owned by third parties. Dkt. 86, Declaration of Patrick McMahon, Exh. A.1 On March 31, 2010, the City's Code Enforcement Officer, Katherine Woodside, informed Engley that the applications were incomplete. Id . On April 13, 2010, Ms. Woodside denied Engley's applications because the proposed general advertisement billboards were “not supported within the current sign code within the City limits.” Id ., Exh. 2. On April 16, 2010, Engley appealed the denial of his permits. Id ., Exh. 4.
On June 22, 2010, the City adopted Ordinance No. 011-10, which prohibited all billboards within the City limits. On June 23, 2010, the City moved to dismiss Engley's appeal arguing that the amendments to the sign code rendered the issues moot. On September 23, 2010, the Hearing Examiner issued an opinion denying the City's motion to dismiss because Engley's permits had vested before adoption of the ordinance. Id ., Exh. 7.
On November 9, 2010, the Hearing Examiner issued a decision denying Engley's appeal on the merits. Id ., Exh. 8. The Hearing Examiner concluded that the City's interpretation of its code was not clearly erroneous and that Engley's constitutional arguments “need not be addressed.” Id .
On December 15, 2010, Engley appealed to the City Council. Id ., Exh. 10. On March 22, 2011, the City Council issued a decision denying Engley's appeal as untimely. Id ., Exh. 11. This Court overturned that decision in Engley I and remanded to consider the merits of the appeal.
On September 27, 2011, the City Council adopted Resolution 033-11. Id ., Exh. 12 (“Resolution”). In that resolution, the City Council concluded that (1) the Hearing Examiner erred in ruling that the permit applications were prohibited under the City code, (2) Engley's permits were not vested, and (3) neither the City Council nor the Hearing Examiner have authority to rule on constitutional issues. Id . On September 12, 2012, the Court granted Engley's petition to reverse the City Council's “decision regarding the vesting of its permit applications.” Dkt. 63 at 1.
In December 2012, the City granted Engley's permits. Dkt. 88, Declaration of William John Crittenden, ¶ 4.
III. DISCUSSION
Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)
. The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp ., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)
(). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 253, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n , 809 F.2d 626, 630 (9th Cir.1987).
The determination of the existence of a material fact is often a close question. The Court must consider the substantive evidentiary burden that the nonmoving party must meet at trial—e.g., a preponderance of the evidence in most civil cases. Anderson , 477 U.S. at 254, 106 S.Ct. 2505
; T.W. Elec. Serv., Inc ., 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elec. Serv., Inc ., 809 F.2d at 630 ( Anderson , 477 U.S. at 255, 106 S.Ct. 2505 ). Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be presumed. Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 888–89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).
In this case, the City argues that Engley's claims for damages are barred by the doctrine of collateral estoppel. Dkt. 85. Collateral estoppel “prevents relitigation of an issue after the party estopped has had a full and fair opportunity to present its case.” Barr v. Day , 124 Wash.2d 318, 324–25, 879 P.2d 912 (1994)
.
Four conditions must be met before the doctrine will be applied: (1) the issues in the two actions must be identical; (2) there must have been a final judgment in the first action; (3) the party against whom the estoppel is being pleaded must have been a party or in privity with a party to the first action; and (4) application of the doctrine cannot work an injustice on the party against whom it is pleaded.
Lutheran Day Care v. Snohomish Cty. , 119 Wash.2d 91, 115, 829 P.2d 746 (1992)
The City contends that Engley is barred from bringing the damages claims in Engley II because they were presented in Engley I . The City's argument is without merit. The City is correct that Engley has asserted nearly identical claims in both cases, but the City fails to recognize that Engley did not have a full and fair opportunity to present his damages claims in Engley I . In that case, the Court reversed the City Council's decision on a procedural timing error, remanded for further consideration, and dismissed the remaining issues as moot. The City has failed to show that those ruling have any preclusive affect on Engley's current claims for damages. Therefore, the Court denies the City's motion on this issue.
Section 1983
is a procedural device for enforcing constitutional provisions and federal statutes; the section does not create or afford substantive rights. Crumpton v. Gates , 947 F.2d 1418, 1420 (9th Cir.1991). In order to state a claim under section 1983, a plaintiff must demonstrate that (l) the conduct complained of was committed by a person acting under color of state law and that (2) the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or by the laws of the United States. Parratt v. Taylor , 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)
, overruled on other grounds by
Daniels v. Williams , 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).
The two issues with Engley's § 1983
claim are whether he has established constitutional violations and whether he has established...
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