Manna Funding, LLC v. Kittitas Cnty.
| Decision Date | 09 April 2013 |
| Docket Number | No. 30539–2–III.,30539–2–III. |
| Citation | 295 P.3d 1197 |
| Parties | MANNA FUNDING, LLC a Washington Limited Liability Company, Wild Horse Ranch, LLC, a Washington Limited Liability Company, Peregrine Skies, LLC, a Washington Limited Liability Company, Premier Property and Development Group, LLC, a Washington Limited Liability Company, Wild Rivers Crossing, LLC, a Washington Limited Liability Company, Appellants, v. KITTITAS COUNTY, a Washington municipal corporation, Respondent. |
| Court | Washington Court of Appeals |
OPINION TEXT STARTS HERE
Duana Theresa Kolouskova, Johns Monroe Mitsunga PLLC, Bellevue, WA, Robert Brian Jackson, Attorney at Law, Woodinville, WA, for Appellants.
Mark Robert Johnsen, Attorney at Law, Seattle, WA, Neil Alan Caulkins, Kittitas County Prosecutor, Ellensburg, WA, for Respondent.
¶ 1 The Kittitas County Board of County Commissioners (Board) twice denied an application by Manna Funding, LLC 1 for site-specific rezoning of its rural acreage near Roslyn. Manna sought relief under the Land Use Petition Act (LUPA), chapter 36.70C RCW, and the superior court ordered Kittitas County (the County) to grant the rezone. Manna additionally sued the County for a claimed violation of RCW 64.40.020 and 42 U.S.C. § 1983, and for tortious interference with a business expectancy/tortious delay. The court dismissed Manna's lawsuit on summary judgment and awarded the County attorney fees. Manna appeals.
¶ 2 We affirm the summary judgment order based upon our conclusions that (1) Manna's application for rezoning was not an “application for a permit” for purposes of a cause of action under RCW 64.40.020; (2) Manna had no federally protected property interest in its application for rezoning for purposes of a claim under 42 U.S.C. § 1983; and (3) Manna produced no evidence of a contractual relationship or business expectancy necessary to sustain its claims for tortious interference with a business expectancy or tortious delay. We vacate the attorney fee award, however, and remand to the superior court with instructions to award the County its attorney fees attributable solely to the RCW 64.40.020 claim.
¶ 3 In October 2006, Manna submitted to Kittitas County its application for a site-specific rezone from “Forest and Range 20” (FR–20) to “Rural 3” (R–3) of its 100.31 acres of land lying north of the City of Roslyn and east of State Route 903. The land had been zoned FR–20 in 1992. The requested rezone would allow a reduction in lot sizes from 20 acres to 3 acres per residential unit. Manna made clear in its application that it was currently seeking only a zoning reclassification, that no specific development activities were currently proposed, and that any future development would comply with the County's development regulations existing at the time of the application. A State Environmental Policy Act (SEPA), chapter 43.21C RCW, mitigated determination of nonsignificance was issued by County staff in December 2006.
¶ 4 After open record proceedings that included public testimony for and against Manna's proposal, the County's Planning Commission adopted findings of fact and a recommendation that the Board deny the rezone. The Board did so by Resolution 2007–53 that was entered on May 15, 2007. The Board found that Manna failed to prove the rezone would contribute to the health, safety, and welfare of the surrounding zone, but did not elaborate on that finding. The Board also determined that Manna's proposal failed to meet several necessary criteria for a rezone under Kittitas County Code (KCC) 17.98.020(7).2 The Board's findings reflected concerns that questionable property access and steep slope hindering fire safety impacted the public health, safety, and welfare; that the rezone would not have merit or value for the County or sub-area; that the steep slope made the property unsuitable for reasonable development in general conformance with R–3 zoning standards; and, that the proposed rezone would be materially detrimental to the nearby urban forest zone and possibly to the historic city of Roslyn. The Board gave no other supporting details or reasons for its findings.
¶ 5 On June 5, 2007, Manna filed a LUPA petition requesting the superior court to overturn Resolution 2007–53. The petition also incorporated a complaint for damages under RCW 64.40.020 and 42 U.S.C. § 1983. After determining that the Board failed to adequately review the record and make meaningful findings of fact from which its conclusions could be drawn, the superior court reversed the Board's decision, vacated Resolution 2007–53, and remanded the matter for new hearings before the Planning Commission and Board. The court specifically instructed the Board to conduct on-the-record discussions to illuminate its decision-making, and to make detailed findings of fact to support its conclusions. The court elaborated:
Any finding of fact and conclusion of law set forth in the resolution should reflect just what the Board has reviewed in determining its findings. Moreover, the findings should be based upon the evidence presented, not on conclusions that the applicant did not meet rezone criteria. For instance, if the Board were to make an ultimate finding that access was questionable, it should make particular findings based upon the record to demonstrate why the access was questionable.... Similarly, making a bald finding that the petitioners did not meet their burden of proof to demonstrate the rezone positively affected the health, safety, morals and general welfare of the county, without making findings of fact as to why the Board concludes it did not meet the burden does not help the court in its judicial review of the proceedings.
Clerk's Papers (CP) at 534 n. 18.
¶ 6 After a new public hearing and findings by the Planning Commission, the Board entered Resolution 2008–104 on June 17, 2008, again denying Manna's application. The Board found Manna failed to show that the proposed R–3 zoning would contribute to the health, safety, and welfare of the surrounding zone. The Board further found with respect to the KCC rezone criteria that (1) Manna's proposed amendment “would not change access to the property” and therefore bears no relation to the health, safety, and welfare, (2) Manna failed to prove the rezone had merit and value for Kittitas County or a sub-area of the County, (3) “there is no warranted change in circumstances ... [and] further ... the analysis in the record is not sufficient to determine there is a need for additional property in the proposed zone,” and (4) “information in the record regarding the commercial forest zone to the north and the Urban Forest Zone to the south would make a Rural–3 zone detrimental to the existing zones.” CP at 790.
¶ 7 On July 8, 2008, Manna filed a second LUPA petition, seeking to overturn Resolution 2008–104. The petition likewise included a complaint for damages under RCW 64.40.020 and 42 U.S.C. § 1983. In a memorandum decision issued on February 5, 2009, the court observed that the Board failed to heed its instructions to include detailed findings to explain the reasons for its decision, and that its findings were again too conclusory for review. The court ruled that substantial evidence conclusively established Manna had met its burden on all of the KCC rezoning criteria, and that the R–3 zone comports with the comprehensive plan and implements its goals and policies relating to rural lands. Consequently, the rezone bears a substantial relationship to the public welfare.3 The court thus reversed the Board's decision, vacated Resolution 2008–104, and remanded the matter to the Board with instructions to approve Manna's requested rezone.4 The County did not appeal. On February 18, 2009, the Board entered an ordinance approving Manna's requested R–3 zone change.
¶ 8 Manna subsequently filed an amended complaint on August 11, 2011, adding claims for tortious interference with a business expectancy and tortious delay. Manna filed a motion for partial summary judgment as to RCW 64.40.020 liability of the County for claimed arbitrary and unlawful delay by the Board, while reserving damages issues for discovery and a trial. The County filed a cross motion for summary judgment to dismiss Manna's entire lawsuit on grounds of absence of standing, limitations, ripeness, and failure to satisfy the elements of its various claims. The court denied Manna's motion and granted the County's motion. The court awarded the County $21,496.50 in attorney fees as prevailing party under RCW 64.40.020. Manna appeals.
¶ 9 This court reviews an order of summary judgment de novo. Hisle v. Todd Pac. Shipyards Corp., 151 Wash.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is appropriate when there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c). “A material fact is of such a nature that it affects the outcome of the litigation.” Ruff v. County of King, 125 Wash.2d 697, 703, 887 P.2d 886 (1995). We consider the facts and inferences from the facts in the light most favorable to the nonmoving party. Jones v. Allstate Ins. Co., 146 Wash.2d 291, 300, 45 P.3d 1068 (2002).
¶ 10 A defendant moving for summary judgment may meet the initial burden by pointing out the absence of evidence to support the nonmoving party's case. Young v. Key Pharms., Inc., 112 Wash.2d 216, 225 n. 1, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “If the moving party is a defendant and meets the initial showing, then the inquiry shifts to the party with the burden of proof at trial, the plaintiff.” Id. at 225, 770 P.2d 182 (footnote omitted). The facts set forth must be specific, detailed, and not speculative or conclusory. Sanders v. Woods, 121 Wash.App. 593, 600, 89 P.3d 312 (2004). If, at this point, the plaintiff “ ‘fails to make a showing...
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