The City of Cheney v. Bogle, No. 26000-3-III (Wash. App. 5/1/2008)
| Decision Date | 01 May 2008 |
| Docket Number | No. 26000-3-III.,26000-3-III. |
| Court | Washington Court of Appeals |
| Parties | THE CITY OF CHENEY, A Municipal Corporation, Respondent, v. STEVE BOGLE AND JANE DOE BOGLE, Appellants. |
Appeal from Spokane Superior Court. Docket No. 06-2-03218-1. Judgment or order under review. Date filed: 02/23/2007. Judge signing: Honorable Jerome J Leveque.
Counsel for Appellant(s), Kevin W Roberts, Dunn & Black PS, 10 N Post St Ste 200, Spokane, WA, 99201-0705.
Counsel for Respondent(s), Timothy Michael Lawlor, Witherspoon Kelley Davenport & Toole, 422 W Riverside Ave Ste 1100, Spokane, WA, 99201-0300.
Stanley Martin Schwartz, Witherspoon Kelley Davenport & Toole, 1100 Us Bank Bldg, 422 W Riverside Ave, Spokane, WA, 99201-0300.
Steve Bogle operates an auto repair business from his property in Cheney, Washington (the City). Mr. Bogle's property fronts First Street, or State Highway 904, and his building is located at the edge of the City's sidewalk.
The City filed an action, seeking to quiet title to the 12-foot strip of property condemned by an ordinance in 1889. The City also sought to abate the public nuisance created by the encroachment of Mr. Bogle's building on the public right-of-way. The City moved for partial summary judgment on its claims. The trial court quieted title to the disputed property in the City and entered an order and warrant of abatement compelling Mr. Bogle to demolish and remove all portions of his building constructed on the right-of-way. The trial court also entered summary judgment dismissing Mr. Bogle's counterclaims and affirmative defenses.
On appeal, Mr. Bogle contends that the trial court erred by granting the City's motions and dismissing his equal protection counterclaims and affirmative defenses of laches, waiver, and equitable estoppel. We conclude that there are no genuine issues of material fact and affirm the trial court's grant of summary judgment and dismissal of Mr. Bogle's affirmative defenses and counterclaims.
Steve Bogle is the owner of real property, located at 16 First Street in Cheney, Washington. Mr. Bogle operates his business, an auto repair shop, on the property. Mr. Bogle's property fronts First Street, also known as State Highway 904 or SR 904.
In August 1999, Mr. Bogle purchased this parcel of real estate from John and Judy Reitmeier and acquired title to the property by statutory warranty deed. The legal description of the property conveyed by the deed is: "The Northwesterly 88 feet of Lots 8 and 9, Block 57, TOWN OF CHENEY, according to plat recorded in Volume `A' of plats, page 44, in Spokane County, Washington." Clerk's Papers (CP) at 284.
Historical Background.
The City's original plat created lots in block 57 that were 100 feet deep. The City contends that the size of the lots was reduced to 88 feet in depth when 12 feet of those lots was condemned by Ordinance No. 76.
In April 1889, the City passed Ordinance No. 76 to widen First Street. The ordinance provided that 12 feet of real property on both sides of First Street, from Elm Street to Union Avenue, would be condemned so that First Street would be 84 feet in width. Pursuant to the ordinance, the City asserts that it condemned "[t]he Northwesterly 89 to 100 feet of Lots 8 and 9, Block 57, TOWN OF CHENEY," for a public right-of-way. CP at 5. The Spokane County Assessor's Map notes that a condemnation occurred.1
Ordinance No. 76 also required compensation to be paid to the affected lot owners. Importantly, the ordinance was enacted prior to statehood and the adoption of the Washington State Constitution. The City claims that pursuant to the statutes then in effect, compensation for the taking was provided for by Ordinance No. 83, enacted in May 1889. Pursuant to Ordinance No. 83, the City vacated 12 feet of the alleys at the rear of the affected lots along each side of First Street in exchange for the 12 feet taken by the City through Ordinance No. 76. The express purpose of the ordinance was to provide affected land owners with the same amount of real property after the taking as before the taking. Mr. Bogle asserts that there is no admissible evidence to support the conclusion that any compensation was paid and that the property in dispute was actually acquired by the City.
The record shows that First Street was constructed after the City was platted and the streets were created in 1889. In the City's answer, filed in April 2006, the City asserted that First Street was initially paved over 75 years ago. Original monuments marking the centerline of SR 904 establish that the location of SR 904 adjacent to Mr. Bogle's property has not changed since that roadway was originally constructed.
In 1938, the structure currently in dispute was constructed by Mr. Bogle's predecessors on Lot 8 and extending 12 feet onto the northwesterly 89 to 100 feet of that lot. The improvement has existed in the exact same location since that time, and is now owned by Mr. Bogle, who uses the building as an auto repair shop. The City does not have any building permit or assessment records prior to 1953. The City asserts that when the building was constructed in 1938, there was no ordinance requiring a building permit before erecting any structure because that requirement was not imposed until 1958. On September 6, 2001, Mr. Bogle obtained a building permit from the City to replace front and rear doors, valued at $2,000, in his commercial building. Until 2006, the City never indicated that the building was located on the public right-of-way.
In 1985, the curbs on the northwest side of the street which fronts Mr. Bogle's property were installed by the City. That same year, a storm water drainage system, along the same segment of First Street, was installed in conjunction with the installation of the curbs. Most recently, in 2001, the portion of the street which fronts Mr. Bogle's property was resurfaced and sidewalks were installed as part of the SR 904 Corridor Enhancement Project. The building is located at the edge of the City's sidewalk. The record shows that other property owners have improvements located in the area the City claims is the right-of-way, including Jarms Pump Service, located next to Mr. Bogle.
Procedural History.
First Action.2 On February 15, 2006, Mr. Bogle filed an action in Spokane County Superior Court seeking damages against the State of Washington, by and through the Department of Transportation, and the city of Cheney. In his lawsuit, Mr. Bogle alleged that the defendants had unlawfully diverted storm and runoff water onto his property, causing substantial damage to his property and business. Mr. Bogle claimed that the defendant's actions constituted a compensable taking of his private property for public use.
On April 13, 2006, the City filed its answer, asserting multiple counterclaims and affirmative defenses. The City claimed that it owned approximately 12 feet of the real property beyond the curb in front of the property owned by Mr. Bogle. Consequently, the City asserted that most of the property which Mr. Bogle claimed was flooded was the real property of the City and did not belong to Mr. Bogle. The City further asserted that approximately 12 feet of Mr. Bogle's building was illegally constructed on SR 904, based on Ordinance No. 76. Thus, the City also moved the court to enter an order of abatement.
In support of its motion, the City submitted the results of a land survey performed by City of Cheney Engineer and licensed Land Surveyor, Charles Simpson. Mr. Simpson concluded that approximately 12 feet of the building owned by Mr. Bogle was constructed upon the City's right-of-way. The declaration of Mr. Simpson also stated there was no record that any portion of this street was ever vacated by the Cheney City Council.
On June 22, 2006, Mr. Bogle stipulated to the dismissal of that action without prejudice. Second Action.3 On July 21, 2006, the City filed the present lawsuit against Mr Bogle, requesting that the trial court quiet title to the northwesterly 89 to 100 feet of lots 8 and 9, block 57, in the City and to order Mr. Bogle to abate the public nuisance caused by the encroachment of his building upon the right of way. In October, the City moved for partial summary judgment on its claims.
On December 1, 2006 Mr. Bogle filed his answer, in which he raised various counterclaims and affirmative defenses, including waiver, laches, and equitable estoppel. On December 8, requests for admission were served upon Mr. Bogle. In its request, the City stated, in part:
Since at least April 13, 2006, when the City served Defendant Bogle with a motion notifying him that his building intruded upon the public right of way, Defendant Bogle has been intransigent in his refusal to apply to the City and/or to the State of Washington and obtain the requisite permissions for the use of the public right of way for nontransportation purposes.
CP at 180. No answers were received by the City. Because of his failure to respond, Mr. Bogle was deemed to have admitted the requests for admission. See CR 36(a).
On January 19, 2007, the trial court quieted title in the City and issued an order and warrant of abatement. Then, on January 25, the City moved for summary judgment on Mr. Bogle's affirmative defenses and counterclaims. In its motion, the City also sought to impose sanctions against Mr. Bogle's counsel for violating CR 11. On February 23, the trial court granted the City's motion to dismiss but denied the City's request for sanctions.4 Mr. Bogle's appeal followed.
In January 2007, the trial court entered partial summary judgment in favor of the City. In granting the motion, the trial court quieted title to the northwesterly 89 to 100 feet of lots 8 and 9, block 57, in the City. The trial court also issued an order and warrant of abatement, compelling Mr. Bogle to demolish and remove any portion of his building which encroaches...
To continue reading
Request your trial