TT Props. v. City of Tacoma
Decision Date | 12 January 2016 |
Docket Number | No. 46803–4–II.,46803–4–II. |
Citation | 192 Wash.App. 238,366 P.3d 465 |
Parties | TT PROPERTIES, a Washington Limited Liability Company, Appellant, v. CITY OF TACOMA, a Municipal Corporation, Respondent. |
Court | Washington Court of Appeals |
Warren J. Daheim, Margaret Yvonne Archer, Attorney at Law, Tacoma, WA, for Appellant.
Jeff H. Capell, City of Tacoma Atty. Office, Tacoma, WA, for Respondent.
¶ 1 TT Properties (TTP) appeals a summary judgment dismissal of its takings claim against the City of Tacoma involving two parcels of real property. It argues that the superior court erred by granting summary judgment because there are genuine issues of material fact about whether the City's actions constituted a per se or otherwise compensable taking. The City argues that even if there were a compensable taking, the City was not the liable actor. We affirm in part and reverse in part, holding that a material issue of fact exists regarding one parcel of property. We remand to the superior court for further proceedings consistent with this opinion.
¶ 2 TTP is a Washington corporation owned and operated by the Turner family.
TTP owned two properties at issue in this case: 2620 Pacific Avenue (the Pacific Avenue property), and 223 East C Street (the C Street property). Both properties have belonged to the Turner family and its business entities for several decades.1
¶ 3 Before 1952, the Pacific Avenue property covered what is now two lots on a triangular block surrounded by Pacific Avenue to the east, 27th Avenue to the south, and former Delin Street on a diagonal to the north and west. In 1952, the Turner family sold roughly half of the property to the City of Tacoma and retained the southern part of the property (what is now 2620 Pacific Avenue, or the Pacific Avenue property). The northern portion which the City bought, 2610 Pacific Avenue, abutted Delin Street to the north and west. The Pacific Avenue property retained by the Turners lacked direct access to Delin Street because of the property's grade and a retaining wall. But the Turners retained an express easement over the property they sold to the City, allowing the Turners to cross the City's property to reach Delin Street. TTP's businesses used Delin Street to exit the property "on a regular basis." Clerk's Papers (CP) at 189.
¶ 4 The C Street property abuts a city-owned alleyway that is 20 feet wide. The Turners used the alleyway as an entrance to the C Street property.2 Specifically, trucks and long-haul vehicles used to use the alleyway to enter the property, but needed to "swing wide" over a city-owned railroad right-of-way beyond the alleyway to enter. CP at 191.
¶ 5 In 2009, the Central Puget Sound Regional Transit Authority, doing business as Sound Transit, began a project known as the "D to M Street Track & Signal Project." CP at 29. The project was designed to add 1.4 miles of new tracks on a City right-of-way to help connect its Sounder commuter rail service from the Tacoma Dome station to a new station in Lakewood. The City passed a "Right–of–Use Agreement" (RUA) laying out its plans regarding the D to M Street project. CP at 197. In relevant part, the RUA contemplated that Sound Transit would need to use some city rights-of-way, including Delin Street. The City noted that "it is in the best interests of the public that the City authorize such use of the Public Rights–of–Way in support of Sounder Commuter Rail service." CP at 197. Other than granting Sound Transit the right to use various rights-of-way, the City's involvement in the D to M Street project consisted solely of approving and permitting Sound Transit's plans.
¶ 6 Sound Transit and its contractors carried out the necessary work for the D to M Street project. This included closing the portion of Delin Street that previously abutted 2620 and 2610 Pacific Avenue—in other words, the portion of Delin Street that the Pacific Avenue property accessed via its easement. Sound Transit converted this portion of the former Delin Street to a grassy slope. The Pacific Avenue property remains accessible from Pacific Avenue and 27th Street.
¶ 7 Pursuant to a city permit, Sound Transit also placed a "utility bungalow" on the city right-of-way abutting the alley near the C Street property. CP at 151. The bungalow encroached about one foot into the alleyway, leaving 18.97 to 19.19 feet of the 20–foot–wide alleyway unobstructed. The remaining space in the alleyway here was more than the 16 foot minimum width required by the City for an alleyway. Nevertheless, the bungalow made it impossible for trucks to "swing wide" across the right-of-way to enter the alleyway and reach the C Street property.
¶ 8 TTP sued the City for unconstitutionally taking its property at 2620 Pacific Avenue and C Street. It alleged that the City accomplished these takings in conjunction with Sound Transit. TTP alleged that the removal of Delin Street damaged TTP because it was an abutting property owner. It also alleged that the utility bungalow's encroachment into the alleyway damaged its property. TTP declared that the C Street property's value was reduced because trucks could no longer "swing wide" to enter the alley.
¶ 9 The City moved for a summary judgment dismissal of all of TTP's claims. It argued that TTP could not obtain relief because (1) TTP had not demonstrated a takings claim, and therefore lacked standing, and, alternatively, (2) the City was not the actor that caused any taking.
¶ 10 In response, TTP asserted that the removal of Delin Street "has had a significant negative impact on the value" of the Pacific Avenue property and that the property was sold in 2013 "at a much reduced price." CP at 190. It also provided a declaration from a real estate appraiser, who said that his ongoing investigation of damages revealed that the "impact on value [at both properties] is significant." CP at 185.
¶ 11 TTP also argued that the City "participated with Sound Transit in permanently closing Delin Street," and "participated with Sound Transit in constructing a substantial encroachment on the public [alleyway] abutting Plaintiff's C Street property." CP at 171. TTP alleged that these were more than merely regulatory actions because they were "proprietary actions respecting a government's management of its public lands." CP at 171. It alleged that the "extensive Right of Use Agreement with Sound Transit" made the City into a "direct participant by allowing its land to be used by Sound Transit." CP at 173.
¶ 12 The superior court orally granted the City's summary judgment motion on the grounds that TTP "still [has] access, and the City can go ahead and vacate a street if they want; but [TTP still has] access on two points" at the Pacific Avenue property. Verbatim Report of Proceedings at 18. In its written order, the superior court clarified that it granted the City's motion for summary judgment on the basis that "there is no compensable taking and therefore plaintiff has no standing against the City of Tacoma." CP at 274. TTP appeals.
¶ 13 We review a trial court's summary judgment ruling de novo. Torgerson v. One Lincoln Tower, LLC, 166 Wash.2d 510, 517, 210 P.3d 318 (2009). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. CR 56(c). A material fact is one on which the litigation's outcome depends in whole or in part. Atherton Condo. Apt.-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wash.2d 506, 516, 799 P.2d 250 (1990). We consider "all the facts submitted and the reasonable inferences therefrom in the light most favorable to the nonmoving party." Atherton, 115 Wash.2d at 516, 799 P.2d 250. Summary judgment should be granted only if the nonmoving party fails to show that a genuine issue as to a material fact exists. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wash.2d 1, 12–13, 721 P.2d 1 (1986).
¶ 14 TTP argues that material facts exist regarding whether the City, together with Sound Transit, took its property without just compensation at the Pacific Avenue and C Street sites. We agree with respect to the Pacific Avenue property, and we disagree with respect to the C Street property.
¶ 15 "The federal and Washington state constitutions provide that private property may not be taken for public use without just compensation." Sparks v. Douglas County, 127 Wash.2d 901, 907, 904 P.2d 738 (1995). Where the government physically appropriates private property, a "per se" taking has occurred which requires compensation. Sparks, 127 Wash.2d at 907, 904 P.2d 738 ; Guimont v. Clarke, 121 Wash.2d 586, 603, 854 P.2d 1 (1993). Where the government appropriates property in fact, but with no formal exercise of the power of eminent domain, the law may recognize a taking through inverse condemnation. Dickgieser v. State,
153 Wash.2d 530, 534–535, 105 P.3d 26 (2005). To establish inverse condemnation, a plaintiff must show "(1) a taking or damaging (2) of private property (3) for public use (4) without just compensation being paid (5) by a governmental entity that has not instituted formal proceedings." Dickgieser, 153 Wash.2d at 535, 105 P.3d 26.
¶ 16 The plaintiff in a takings case must show that a governmental activity directly or proximately caused the plaintiff's loss.
Jackass Mt. Ranch, Inc. v. S. Columbia Basin Irrigation Dist., 175 Wash.App. 374, 389, 305 P.3d 1108 (2013). "The government needs active proprietary participation, meaning ‘participation without which the alleged taking or damaging would not have occurred.’ " Jackass Mt. Ranch, 175 Wash.App. at 389, 305 P.3d 1108 (quoting Halverson v. Skagit County, 139 Wash.2d 1, 13, 983 P.2d 643 (1999) ).
¶ 17 TTP argues that the City...
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