Norco Const., Inc. v. King County

• Decision Date: 03 October 1986
• Docket Number: No. 85-3513,85-3513
• Citation: 801 F.2d 1143
• Parties: NORCO CONSTRUCTION, INC., a Washington Corporation, Plaintiff-Appellant, v. KING COUNTY, a Municipal Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1143

801 F.2d 1143

NORCO CONSTRUCTION, INC., a Washington Corporation Plaintiff-Appellant, v. KING COUNTY, a Municipal Corporation, Defendant-Appellee.

No. 85-3513.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 10, 1985.

Decided Oct. 3, 1986.

Richard U. Chapin, Inslee, Best, Chapin, & Doezie, Bellevue, Wash., Malcolm L. Edwards, Edwards & Barbieri, Seattle, Wash., for plaintiff-appellant.

Stephen O. Kenyon, Deputy Pros. Atty., Seattle, Wash., for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before BROWNING, KENNEDY, and HUG, Circuit Judges.

KENNEDY, Circuit Judge:

Norco Construction, Inc. (Norco), a real estate developer, appeals from the grant of summary judgment to King County (the county). The district court found that the statute of limitations barred Norco's federal claims under 42 U.S.C. Sec. 1983, as well as pendent state causes of action for tort and inverse condemnation. Norco argues that it could not have brought suit before August 1982. We agree, and find the statute of limitations no bar to Norco's claims. We further reject the county's contention that the earlier state mandamus proceeding was res judicata to this action.

Norco owns a seventy-five-acre tract of land in southeast King County. In May 1977, it sought preliminary plat approval under Wash.Rev.Code Sec. 58.17.070 to subdivide the tract into one-acre lots. In August 1977, a county hearing examiner recommended approval of Norco's preliminary plat; the examiner noted, however, that the plat was inconsistent with a proposed modification of the county's comprehensive plan, known as the Soos Creek Plan. The Soos Creek Plan, ultimately adopted in November 1979, called for minimum five-acre lots on Norco's land.

Washington law requires that within ninety days of filing, a county council approve, disapprove, or return for modification a preliminary plat application. Wash.Rev.Code Sec. 58.17.140. On October 31, 1977, the King County Council (the council) declined to act on Norco's application, referring it to the Planning and Community Development Committee, which was then considering the Soos Creek Plan. The council took no action on Norco's application following its October 31, 1977 meeting. On January 30, 1978, the council passed an ordinance, King County Code Sec. 19.08.250, providing for deferral of preliminary plat approvals if inconsistent with the pending Soos Creek amendments to the comprehensive plan.

In February 1979, Norco filed a petition for a writ of mandamus in the state superior court seeking to force the county to act on its application. The court issued the writ in April 1979. The writ required the county to consider the Norco application on the basis of statutes and ordinances in effect when Norco completed the application, and specifically prohibited judging it against the requirements of the Soos Creek Plan. The county enjoined enforcement of the writ pending appeal, pursuant to Wash.Rev.Code Sec. 4.92.080. The decision to grant the writ was affirmed by the state court of appeal, Norco Construction, Inc. v. King County, 29 Wash.App. 179, 627 P.2d 988 (1981), and the state supreme court, Norco Construction, Inc. v. King County, 97 Wash.2d 680, 649 P.2d 103 (1982) (en banc).

The supreme court decision was filed July 29, 1982; on August 23, 1982, the council approved Norco's application. In February 1983, Norco filed an action in state court for damages resulting from the county's refusal to act on its application before August 23, 1982. Norco Construction, Inc. v. King County, King County Cause No. 83-2-02563-0. The complaint alleged causes of action for tort and inverse condemnation under state law, as well as a federal cause of action under 42 U.S.C. Sec. 1983. Under section 1983, Norco alleged the county's failure to act on the preliminary plat application within the statutory period denied it procedural due process and equal protection (given the previous approval of similar proposals submitted by others), and deprived it of property without just compensation. King County removed the case to the district court pursuant to 28 U.S.C. Sec. 1441(a), (b).

The district court held Norco's claims barred by statutes of limitations. It determined that Wash.Rev.Code Sec. 4.16.080(2) barred the federal claims, held applicable to section 1983 actions brought in Washington by Rose v. Rinaldi, 654 F.2d 546 (9th Cir.1981). Applying federal law to determine when the section 1983 cause of action accrued, the court held that Norco knew or had reason to know of its claims by October 31, 1977. See Norco Construction, Inc. v. King County, slip op. at 4-6 (W.D.Wash. Sept. 7, 1984). The court ruled that under Washington law the pendent state tort and inverse condemnation claims were also time-barred, finding that Norco's state causes of action had accrued by October 31, 1977.

The parties agree that state law supplies the statute of limitations for all of Norco's claims. See Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 1794-95, 64 L.Ed.2d 440 (1980); Rose v. Rinaldi, 654 F.2d 546 (9th Cir.1981). The district court applied the three-year limitation period in Wash.Rev.Code Sec. 4.16.080(2) "for any ... injury to the person ... not hereinafter enumerated" to Norco's claims under 42 U.S.C. Sec. 1983; it found Norco's inverse condemnation claim governed by the same statute. The court did not decide whether the three-year period of Wash.Rev.Code Sec. 4.16.080(2) or the two-year period of Wash.Rev.Code Sec. 4.16.130 applied to the tort claims, concluding that it was irrelevant which statute applied. Since we too find it immaterial whether a two or three-year statute governs Norco's claims, and since the parties do not challenge the district court's selection of state limitation periods on appeal, we will not reconsider the district court's identification of the relevant limitation periods.

State law also determines when the statute of limitations begins to run on state claims. Under Washington law, a cause of action accrues "when [a] party has a 'right to apply to a court for relief.' " United States Oil & Refining Co. v. Department of Ecology, 96 Wash.2d 85, 91, 633 P.2d 1329, 1333 (1981) (en banc) (quoting Lybecker v. United Pacific Insurance Co., 67 Wash.2d 11, 15, 406 P.2d 945, 947 (1965)). Federal law, however, determines when the state limitations period begins for a claim under 42 U.S.C. Sec. 1983. See Cline v. Brusett, 661 F.2d 108, 110 (9th Cir.1981); Briley v. California, 564 F.2d 849, 855 (9th Cir.1977). A federal claim is generally considered to accrue when the plaintiff "knows or has reason to know of the injury which is the basis of the action." Trotter v. International Longshoremen's & Warehousemen's Union, 704 F.2d 1141, 1143 (9th Cir.1983).

We first consider Norco's federal claims. The district court found that all three of Norco's section 1983 claims accrued on or before October 31, 1977. It held that Norco knew then that the county had treated it differently from other applicants (the equal protection claim), that the county would not act within the times provided by statute (the due process claim), and that the county intended an indefinite stay of any decision whether to permit subdivision of the land into one-acre lots (the inverse taking).

The district court's result is foreclosed by Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, --- U.S. ----, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). In Williamson County, the plaintiff brought a 42 U.S.C. Sec. 1983 action against the county. The plaintiff claimed, as does Norco in this case, that the county's temporary refusal to allow development of its property constituted a compensable taking. The Court did not reach the merits, but found the action premature. The Court remanded the case for further proceedings because the action would not be ripe until the county had reached a final decision on how much development, if any, would be allowed on the property. 105 S.Ct. at 3117.

We conclude that under federal law the general rule is that claims for inverse taking, and for alleged related injuries from denial of equal protection or denial of due process by unreasonable delay or failure to act under mandated time periods, are not matured claims until planning authorities and state review entities make a final determination on the status of the property. The duration of the wrongful taking may be relevant to determining whether a wrong has occurred, as well as the extent of the damage suffered. We recognize a claim might also arise when it is clear beyond peradventure that excessive delay in such a final determination has caused the present destruction of the property's beneficial use....