Kelly v. City of Port Townsend, C10-5508RBL
| Decision Date | 16 May 2011 |
| Docket Number | No. C10-5508RBL,C10-5508RBL |
| Court | U.S. District Court — Western District of Washington |
| Parties | KEN KELLY, et al., Plaintiffs, v. CITY OF PORT TOWNSEND, Defendant. |
DEFENDANT'S MOTION FOR
This matter comes before the Court on "Plaintiffs' Motion for Partial Summary Judgment FRCP 56" (Dkt. # 25) and "The City of Port Townsend's Motion for Summary Judgment" (Dkt. # 31). Plaintiffs allege that the City of Port Townsend took private property without compensation when it redesigned the intersection of SR 20, Thomas Street, and 5th Street. Plaintiffs have asserted four takings claims under the federal and state constitutions, a due process claim under the federal constitution, and common law claims of negligence and estoppel against the City.
Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact that would preclude the entry of judgment as a matter of law. The party seeking summary dismissal of the case "bears the initial responsibility of informing the district court of the basis for its motion" (Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)) and identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" that show theabsence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to designate "specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324. "The mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient," and factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion for summary judgment. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, "summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable jury could return a verdict in its favor." Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995).
Having reviewed the memoranda, declarations, and exhibits submitted by the parties, 1 having heard the arguments of counsel, and taking the evidence in the light most favorable to plaintiffs, the Court finds as follows:
BACKGROUND
Plaintiff Heritage Products, LLC, is the owner of real property having an address of 2000 Sims Way (a/k/a SR 20), Port Townsend.2 The property covers an entire city block and is bounded on the north by 6th Street, on the east by Thomas Street, on the south by 5th Street, and on the west by McPherson Street. The parties agree that Heritage Products owns a feesimple estate to the centerline of each of these four streets, subject to the right of the public to use the street for all purposes not inconsistent with the public easement. At the point where the centerlines of Thomas Street and 5th Street intersect, plaintiffs' fee simple estate extends into the upper boundary of the SR 20 right of way.
In 1993, the City of Port Townsend adopted a "Gateway Plan" to guide future development of SR 20 as the primary corridor to the ferry dock and the City itself. The Plan included a proposal for a traffic signal at the intersection of SR 20 and McPherson Street.
In 2003, plaintiffs sought a permit from the City to build a two-story commercial building on their property. The City required a number of mitigation and road improvement activities, including the development of Thomas Street and 5th Street. At the time, 5th Street was nothing more than "vacant land with a barely-used dirt path" (Decl. of Ken Kelly (Dkt. # 26) at 4) and Thomas Street was a dead-end (Decl. of Guy Hupy (Dkt. # 27) at 2). Plaintiffs completed the required street improvements and conveyed them to the City on March 6, 2006. Decl. of David Peterson (Dkt. # 33) at 6. Throughout the permitting and construction process, plaintiffs were given the impression that they would have unobstructed 360° access to their building, that 5th Street served no purpose as a public road, that plaintiffs should develop 5th Street and Thomas Street as parking lots dedicated solely for the use of their building, and that neither 5th Street nor Thomas Street would be opened as public throughways.3 Second Amended Complaint (Dkt. # 10) at 1 4.10; Decl. of Guy Hupy (Dkt. # 27) at 2-4. As of 2005, the City acknowledged only a single road improvement in the immediate vicinity of plaintiffs' property, namely the proposed traffic signal at the corner of McPherson Street and SR 20, to which plaintiffs were required to contribute $15,000. Second Amended Compliant (Dkt. # 10) at 11 4.19-4.20; Decl. of Guy Hupy (Dkt. # 27) at 7. Plaintiffs designed their building and thesurrounding road improvements on the assumption that their customers and suppliers would have direct access from SR 20 into the parking areas on both 5th Street and Thomas Street.
After plaintiffs' project was approved by the City, implementation of the Gateway Plan began. Decl. of David Peterson (Dkt. # 33) at 7 and 10. The planning process initially focused on traffic control options for the intersection of Howard Street and SR 20 (a few blocks west of plaintiffs' building) where left hand turns onto SR 20 from a business park were creating problems. The City considered a number of alternatives to improve traffic flow and safety in the area, held community workshops and public comment periods, and retained consultants to evaluate options. Decl. of David Peterson (Dkt. # 33) at 12-13. When additional funding opportunities arose, the City expanded the scope of the project to two intersections along SR 20. In November 2008, after reviewing as many as twelve alternatives, the City selected a proposal to install roundabouts at Howard Street and Thomas Street. Decl. of David Peterson (Dkt. # 33) at 15.
Installation of the roundabout at Thomas Street destroyed many of the improvements plaintiffs had installed just a few years earlier. Thomas Street was pushed through to join with 6th Street to the north, thereby destroying infrastructure plaintiffs had placed at what used to be the "end" of the road. The City installed curbing and a retaining wall across the eastern end of 5th Street where it intersected Thomas Street and SR 20, thereby preventing vehicles in the roundabout from directly accessing 5th Street and its parking areas. Plaintiffs' on-street parking arrangements were also altered. The number of parking spaces plaintiffs' customers could use on Thomas Street was reduced from five to two, while the available spaces on 5th Street increased from ten to fourteen. In effect, the installation of the roundabout changed 5th Street into a one-block, dead-end road that serves primarily as a parking lot for plaintiffs' businesses. Decl. of Ken Kelly (Dkt. # 26) at 6; Decl. of Guy Hupy (Dkt. # 27) at 4. Despite the overall increase in on-street parking, the 2009-2010 traffic flow revision has made it more difficult for larger vehicles, including the tour buses on which plaintiffs' businessapparently depends, to access plaintiffs' building. Ingress to 5th Street now requires at least two turns from SR 20, rather than the direct access that existed prior to installation of the roundabout. Plaintiffs assert that, because the remaining stub of 5th Street does not have a turnaround at the east end, it does not provide an attractive parking option to the drivers of over-sized vehicles. Supplemental Decl. of Ken Kelly (Dkt. # 44) at 5. Because plaintiffs' building, including the location of the front entrance and showroom, was designed based on the assumption that customers would have direct access to and parking on 5th Street, the conversion of 5th Street into a dead end road that is unable to accommodate larger vehicles has made the existing design unworkable and caused a loss of business. Supplemental Decl. of Ken Kelly (Dkt. # 44) at 7-8.
Plaintiffs seek compensation for injuries caused by the construction of the roundabout at the intersection of SR 20 and Thomas Street. Each theory of recovery is discussed below.
Plaintiffs have alleged four takings in the Second Amended Complaint, entitled "Physical Taking of Fee Simple Property," "Taking Access of an Abutting Property," "Physical Taking of a Private Easement," and "Taking by Disproportionate Exactions Upon Removal of Improvements." Although it is sometimes difficult to parse the arguments made in support of and against each takings claim, the Court has considered each claim in the order alleged in the complaint.
Plaintiffs argue that the City's construction of the roundabout at the intersection of Thomas Street and SR 20, including the curbing and retaining wall installed at the east end of 5th Street, works a physical invasion of property owned by plaintiffs in fee simple. Plaintiffs acknowledge that the roundabout and related improvements were constructed within the publicright of way. Plaintiffs' Motion (Dkt. # 25) at 11. The issue, then, is whether the construction invaded a property right owned by plaintiffs.
State law generally determines whether a property right exists. Pande Cameron & Co. of Seattle, Inc. v. Cent. Puget Sound Reg'l Transit Auth., 610 F. Supp.2d 1288, 1300 (W.D. Wash. 2009), aff'd, 376 Fed. App'x. 672 (9th Cir. 2010). Under Washington law, a property owner holds a fee simple estate to the centerline of any public street abutting his lot. Mall, Inc. v. City of Seattle, 108 Wn.2d 369, 376 (1987); RCW 35.79.040 (); 11A Eugene McQuillan, The...
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