Kane v. City of Bainbridge Island

• Decision Date: 02 December 2011
• Docket Number: No. 3:10–cv–05731–RBL.,3:10–cv–05731–RBL.
• Citation: 866 F.Supp.2d 1254
• Parties: Elyse KANE, a single person, and Elyse Kane, d/b/a Kane Construction and Consulting, a sole proprietorship, Plaintiff, v. CITY OF BAINBRIDGE ISLAND, Defendant.
• Court: U.S. District Court — Western District of Washington

866 F.Supp.2d 1254

Elyse KANE, a single person, and Elyse Kane, d/b/a Kane Construction and Consulting, a sole proprietorship, Plaintiff,

v.CITY OF BAINBRIDGE ISLAND, Defendant.

No. 3:10–cv–05731–RBL.

United States District Court,

W.D. Washington,

at Tacoma.

Dec. 2, 2011.

Dawn F. Reitan, Inslee Best Doezie & Ryder, Bellevue, WA, Matthew Derk Hartman, Impact Law Group, Seattle, WA, for Plaintiff.

Adam Rosenberg, Keating Bucklin & McCormack, Seattle, WA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Dkt. # 30]

RONALD B. LEIGHTON, District Judge.

INTRODUCTION

THIS MATTER comes before the Court upon Defendant City of Bainbridge Island's Motion for Summary Judgment. [Dkt. # 30].

This is a case about a land use dispute involving Plaintiff's waterfront property on Bainbridge Island. When Plaintiff bought it, the property could not be developed because it lay completely within a wetland buffer. The City offered a use exception to allow some building on the property. Even when Plaintiff exceeded the limits of the exception by developing the property in an impermissible manner, the City retroactively approved many of the developments anyway.

Plaintiff was unsatisfied because the City did not allow all of her uses and other proposed developments. She appealed the City's decision, claiming it violated her property rights. A Hearing Examiner affirmed the City's decision. After a circuitous appeal and remand process, Plaintiff filed this suit against the City for damages, making a wide variety of claims. The City filed this Motion for Summary Judgment, seeking dismissal of all claims.

The Court has reviewed the materials submitted in support of and in opposition to the Motion. For the reasons below, the Court GRANTS Defendant's Motion for Summary Judgment.

BACKGROUND

Plaintiff Elyse Kane is a property developer, former Seattle environmental compliance officer, and the former owner of the Bainbridge Island property at issue in this case (the “Property”). Defendant City of Bainbridge Island is a municipal corporation organized under the laws of the State of Washington.

1. State and Municipal Law at Issue

The City's municipal code establishes a process to evaluate and adjudicate applications for land use and property development. The Critical Areas Ordinance (CAO) includes requirements for the use and development of parcels within or adjacent to land designated as “critical areas” or “critical area buffers” according to the state's Growth Management Act (GMA) (Wash. Rev.Code ch. 36.70A). Wetlands of a certain size and value are considered critical areas under the act. The GMA applies to Kane's Property because it is located entirely within a designated wetland buffer. Because the Property is waterfront, the state Shoreline Management Act (SMA) (Wash. Rev.Code ch. 90.58) also applies via the City's Shoreline Master Plan (SMP). In regulating Kane's property use, the City applied the more stringent regulations of the CAO rather than the SMP.

2. Development of the Kane Property

In 2000, Plaintiff purchased four waterfront parcels on Bainbridge Island. In 2004, she sold one parcel to a private purchaser and offered the other three to the City for environmental conservation through its Open Space acquisitions program. After arms-length negotiations, the City purchased two parcels. Kane argues the land she sold to the City was encumbered by an implied non-exclusive access easement for the benefit of the parcel she retained. The City contends Kane did not retain any rights or easements on the two parcels sold to the City. Kane kept the remaining parcel, which is approximately 13,200 square feet in size. That parcel and her development of it is the subject of this action. The Property was entirely subsumed by a wetland buffer, set aside from development under the state GMA and the City's CAO. Consequently, Kane filed an application with the City for a Reasonable Use Exception (RUE) to allow residential development on the Property.

Over neighborhood opposition, the RUE was granted on June 12, 2004. Several conditions were imposed by the City, including limiting the house's footprint to 1,085 square feet, 225 square feet for the footprint of an open carport, and a driveway in conformance with the proposed site plan. The City's administrative decision allowed for 10,900 square feet to be deemed “impact area,” or an area in which development of the Property could occur. To offset development in the impact area, the decision required that a corresponding 10,900 square feet of wetland buffer both on- and off-property be set aside as an undisturbed “enhancement area.” The on-property portion of the enhancement area was determined to be 1,930 square feet. The City also required Kane to obtain an approved building permit “in substantial conformance with the [site] plans” before commencing any construction on the Property. [Decl. of Larry Frazier, Dkt. # 31 at 8]. Kane did not challenge or appeal the conditions imposed by the administrative decision accompanying the RUE.

After the City issued the RUE, Kane built a home and developed her Property. Among other things, she constructed a driveway that diverged from the site plan and involved travel over the neighboring property. Using concrete pavers, Kane constructed a patio that was not on the site plan. She utilized a parking area inconsistent with the site plan. Kane also installed a shed and propane tank and parked a recreational vehicle on the Property. None of these improvements were explicitly permitted in the approved RUE and site plan.

3. Disputes and Amendments to the RUE

Kane's development and use of her Property led her neighbors to complain to the City, registering their concern about unlawful development. Rather than pursue code enforcement, the City allowed Kane to file an application to amend her existing RUE. The purpose was to obtain post hoc City approval for the disputed developments.

Kane now contends she filed the application to amend under duress. She alleges that City officials threatened code enforcement actions against her for uses of her Property she believes were legal. She notes that the RUE's original application form required identification of only the “structures” and “impervious surfaces” planned for construction. [Decl. of Elyse Kane, Ex. 16, Dkt. # 44 at 36]. Kane argues that the RUE did not restrict the patio, parking area, shed, propane tank, or RV, because they were not were not “structures” or impervious surfaces. She also argues that an easement existed to allow access via a pre-existing driveway. Nevertheless, Kane filed an application to amend the RUE in October 2006, without challenge or objection.

Among other things, Kane's proposed modified site plan included changes to the existing approved driveway, inclusion of the cement-paver patio, and retention of the RV parking area and storage shed. The City's response memorandum approved most of the proposed amendments, including the patio. However, the City did not approve permanent RV parking or the shed. After receiving City approval for driveway modifications, Kane asserted that the approved driveway plan was insufficient. She appealed the City's decision to the Bainbridge Island Hearing Examiner on March 15, 2007. She contested several administrative decisions. She challenged the City's refusal to allow RV storage and shed. She challenged her obligation to move the propane tank as close to the residence as possible and contested the requirement that she remove the gravel parking area behind the home and to replace it with native vegetation.

On April 27, 2007, the Hearing Examiner stayed the appeal so Kane could file a second application to amend the RUE. On February 27, 2008, she filed a second amendment, requesting relocation of the existing access and driveway to cross the adjacent parcel. Kane expressed concerns about driveway safety and a desire to comply with city code. She proposed transitioning the carport to storage use and building a replacement two-car garage on the landward side of the existing structure in order to accommodate parking off the new access area. On July 25, 2008, the City rejected these proposals. In its denial, the City said that the proposed amendment took for granted property rights Kane had sold away (namely, an access easement across the adjacent lot). It also noted that the house's footprint would exceed the maximum lot coverage permitted in the Code and that the proposals exceeded what was necessary under the RUE ordinance. Kane timely appealed the second decision as well.

4. Procedural Background

a. Appeal to the Bainbridge Island Hearing Examiner

In a consolidated appeal of the two denied amendment proposals, Kane and the City were represented by counsel during a three-day administrative hearing. Both parties called lay and expert witnesses and developed a substantial record.

On December 2, 2008, the Hearing Examiner issued an order affirming the City's decision and denying Kane relief. [Decision of the Hearing Examiner, Dkt. # 39 at 15]. The Examiner concluded that Kane was barred by res judicata from contesting the denied amendments because she had not appealed the original approved RUE in 2004. [Dkt. # 39 at 25]. The Examiner noted that res judicata would not apply if Kane could show a “substantial change” in the application conditions. However, the Examiner found no substantial change that would affect Kane's appeal, particularly rejecting Kane's argument that the existing driveway was unsafe. [Dkt. # 39 at 25–26].

b. Appeal to Kitsap County Superior Court

On December 23, 2008, Kane petitioned the Kitsap County Superior Court for review under the state Land Use Petition Act (LUPA) (Wash. Rev.Code ch. 63.70C). She argued that the City misapplied the CAO to her property. The City responded that Kane's LUPA petition is procedurally barred because she failed to appeal the initial RUE in 2004. The court determined that Kane's petition...