Tapps Brewing Inc. v. City of Sumner

• Decision Date: 16 February 2007
• Docket Number: No. C06-5006RBL.,C06-5006RBL.
• Citation: 482 F.Supp.2d 1218
• Court: U.S. District Court — Western District of Washington
• Parties: TAPPS BREWING INC., a Washington Corporation, and Daniel McClung and Andrea McClung, Individually and as a Marital Community, Plaintiffs, v. CITY OF SUMNER, Defendant.

Page 1218

482 F.Supp.2d 1218

TAPPS BREWING INC., a Washington Corporation, and Daniel McClung and Andrea McClung, Individually and as a Marital Community, Plaintiffs, v. CITY OF SUMNER, Defendant.

No. C06-5006RBL.

United States District Court, W.D. Washington, at Tacoma.

February 16, 2007.

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William C. Severson, Seattle, WA, for Plaintiffs.

Michael Charles Walter, Keating Bucklin & McCormack, Seattle, WA, Patricia Bosmans, City of Sumner, Sumner, WA, for Defendant.

ORDER GRANTING SUMMARY JUDGMENT

LEIGHTON, District Judge.

This matter comes before the Court on Plaintiffs' Motion for Summary Judgment on Federal Takings Issues (Dkt.42-1) and Defendant's Motion for Summary Judgment on All Remaining Issues (Dkt.45-1). The Court has considered the pleadings filed in support of and in opposition to the motions and the file herein.

I. FACTUAL AND PROCEDURAL BACKGROUND

The history of this case spans more than nine years. This dispute concerns a stormwater pipe upgrade requirement imposed by Defendant City of Sumner ("City") upon Plaintiffs Daniel and Andrea McClung ("Plaintiffs") in exchange for granting their development permit and waiving certain permit fees. Plaintiff Tapps Brewing is no longer a part of the action.

On April 27, 1998, Plaintiffs Tapps Brewing and Daniel and Andrea McClung filed suit in Pierce County Superior Court against the City of Sumner. Dkt. 5-2, at 3. Plaintiffs' complaint alleged that the City's General Facilities Charge ("GFC"), which was imposed on the Plaintiffs as a condition of obtaining a building permit, was illegal under state law. Dkt. 5-2, at 3.

On September 3, 1999, Plaintiffs filed a Motion for Summary Judgment. Dkt. 5-3, at 12. In their motion, they raised federal constitutional issues by citing a federal constitutional takings case. Dkt. 5-3, at 20. The Pierce County Superior Court denied the motion. Dkt. 7-8, at 11.

On November 1, 1999, Plaintiffs sought discretionary review of the court's decision. Dkt 7-9, at 1-2. The Washington Court of Appeals denied the request. Dkt. 7-9, at 6. The Plaintiffs filed a Motion to Modify the Commissioner's Ruling on April 11, 2000 (Dkt. 7-11, at 19), and entered into a stipulation with the City permitting appellate review pursuant to RAP 2.3(b)(3) (Dkt. 7-11, at 25). Plaintiffs and City stipulated that the only issue before the Washington Court of Appeals was the alleged violations of RCW 82.02.020 (prohibiting cities from imposing fees or exactions that are disproportionate to the impact of the development). Dkt. 7-11, at 25.

On May 12, 2000, the Court of Appeals granted interlocutory review (Dkt. 7-11, at 27) and on May 4, 2001, issued its decision (Dkt. 7-11, at 29).¹ The Court of Appeals affirmed the trial court's denial of Plaintiffs' Motion for Summary Judgment and remanded to the trial court for further proceedings. Dkt. 7-11, at 29.

On March 28, 2002, Plaintiff filed a Motion for Leave to Amend Complaint. Dkt. 8-2, at 1. The Proposed Amended Complaint would have clarified "the relief requested and more explicitly state[d] the constitutional theories underlying plaintiffs' claims." Dkt. 8-2, at 2. The trial court denied the motion on April 12, 2002. Dkt. 8-2, at 18.

On June 12, 2002, trial commenced (Dkt. 8-4, at 17), and on October 30, 2002 the court issued its decision (Dkt. 8-11, at 14). The court concluded that the GFC that the City imposed on Tapps Brewery, Inc., was invalid. Dkt. 8-11, at 11-12. However, 'the court concluded that the GFC imposed on the Plaintiffs was not invalid and dismissed their claims with prejudice. Dkt. 8-11, at 11-12.

Plaintiffs filed a Notice of Appeal with the Washington State Supreme Court. Dkt. 8-11, at 18. The Washington Supreme Court declined review (Dkt. 9-2, at 20) and transferred the case to the Court of Appeals (Dkt. 9-3, at 1). The Court of Appeals issued an unpublished second opinion, Tapps 11,² on January 25, 2005, reversing and remanding for trial on Plaintiffs' challenge to the pipe upgrade obligation's legality. Dkt. 9-3, at 3. The Court of Appeals also directed that Plaintiffs be allowed to amend the complaint to clarify the constitutional claims. Dkt. 9-3, at 20.

After Plaintiffs amended the complaint (9-4, at 5), the City removed the action to this Court on January 6, 2006 (Dkt.1-1). This Court denied the Plaintiffs' Motion to Remand on March 3, 2006. Dkt. 18.

The facts giving rise to the procedural history are as follows. In the early 1990's, the City of Sumner experienced severe flooding. Dkt. 48-1, at 2. To solve this problem, the City adopted a Stormwater Comprehensive. Plan and accompanying stormwater regulations (Dkt. 48-1, at 2), and the City began reconstructing its drainage system (48-1, at 3). To pay for the construction, the City adopted the Stormwater General Facility Charge ("GFC"), which is calculated using the total amount of impervious surface of the property. Dkt. 48-1, at 3.

Plaintiffs Andrea and Daniel McClung own four adjoining lots on the northwestern corner of Valley and Main streets in the City of Sumner. Dkt. 42-3, at 4. At the time of purchase, a gravel alley ran from east to west at the north end of the lots, separating them from Sumner High School. Dkt 42-3, at 4-5. The Plaintiffs asked the City to vacate the alley, and the City agreed to the vacation in March 1994. Dkt. 42-3, at 6, 8. The City retained a utility easement beneath the alley for a stormwater pipe. Dkt. 42-3, at 8-9.

In May of 1994, the Plaintiffs wished to remodel one of the lot houses into a Subway sandwich shop and convert the vacated alley into a paved parking lot. Dkt. 42-3, at 12-13. They submitted plans to the Sumner Community Development Review Committee on May 19, 1994. Dkt. 42-3, at 12. The City informed Plaintiffs that they would have to install a biofiltration swale to filter the runoff from the new paved parking area. 42-3, at 14.

On September 29, 1995, the City sent Plaintiffs a letter retracting that requirement and instead conditioning approval of the building permit on the installation of a new stormwater line. Dkt. 48-3, at 111. The letter stated, "[t]he existing storm drainage system serving this development and the area along Main Street west of this site is inadequate according to the Stormwater Comprehension Plan of 1992. It states that a 24-inch pipeline is required." Dkt. 48-3, at 111. This letter was issued as a result of a meeting between Daniel Rich, the Plaintiffs' engineer, and Bill Shoemaker, the City's engineer. Dkt. 8-6, at 5.

On October 10, 1995, Mr. Rich and Mr. Shoemaker again met to discuss the drainage system. Dkt. 8-6, at 7. Mr. Shoemaker informed Mr. Rich that the City "dug up the existing storm line near the catch basin.... [and] found that the line is only 12" for four feet, then changes to 6"." Dkt. 8-6, at 7. Mr. Rich noted that the "existing 6" line is essentially worthless as flak' meeting the expected flow of 15.2 Dkt. 8-6, at 7. Mr. Shoemaker also indicated that the "City would probably help with the cost." Dkt. 8-6, at 7.

On December 27, 1995, the City sent another letter to Plaintiffs, explaining that the existing stormwater line (at six inches in diameter) was deficient, and the Plaintiffs' property required a twelve inch diameter pipe per the City's stormwater regulations. Dkt. 48-3, at 114. The City stated, "as a developer, you are required to install a 12-inch storm drain as a minimum." Dkt. 48-3, at 114. The City additionally informed the Plaintiffs through this letter that it wanted them to install a twenty-four inch stormwater line instead of the required twelve-inch line. Dkt. 48-3, at 114. The City made this request because the City's Stormwater Comprehensive Plan called for a pipe with enough capacity to handle a 100-year flood. Dkt. 48-3, at 111. The City informed Plaintiffs that to "offset the cost of the oversizing to meet the City's Comprehensive Plan requirements, the City will waive the storm drainage General Facilities Charge, permit fees, plan review and inspection charges.... [amounting] to about $8,000 to 500." Dkt. 48-3, at 114. The City further stated, "[i]f you find this acceptable, please proceed with the revisions to the Plan." Dkt. 48-3, at 114. Plaintiffs, assuming that "the terms set out in [the City's] letter of December 27, 1995, as being the terms that [they were] required to comply with to obtain City approval for [their project]," did not respond to the City's letter but instead proceeded to install a twenty-four inch pipe. Dkt. 51-3, at 2.

The pending motions before this Court are the Plaintiff's Motion for Summary Judgment on Federal Takings Issues (Dkt.42) and the Defendant's Motion for Summary Judgment on All Remaining Claims. (Dkt.45). As there are no material issues of fact, this Order addresses all remaining claims: (1) violation of the Takings Provision of the Fifth Amendment of the U.S. Constitution pursuant to 42 U.S.C. § 1983; (2) reasonable attorneys fees pursuant to 42 U.S.C. § 1988; (3) violation of Article 1, Section 16 of the Washington State Constitution; and (4) violation of RCW §§ 35.92.025 and 82.02.020.

II. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party 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 non moving party....