Ventures Northwest Ltd. Partnership v. State
| Decision Date | 08 March 1996 |
| Docket Number | No. 17893-1-II,17893-1-II |
| Citation | 81 Wn.App. 353,914 P.2d 1180 |
| Court | Washington Court of Appeals |
| Parties | VENTURES NORTHWEST LIMITED PARTNERSHIP, a Washington limited partnership, Appellant, v. STATE of Washington and Kitsap County, Respondents. Irvin L. PARKHURST and Geraldine Parkhurst, husband and wife, Appellants, v. STATE of Washington and Kitsap County, Respondents. |
Millard Joseph Sloan, Asst. Atty. Gen., Olympia, Douglas Baum Fortner, Port Orchard, for respondents.
Ventures Northwest Limited Partnership and Irvin and Geraldine Parkhurst appeal from an
order on summary judgment that dismissed their takings claims against the State of Washington and Kitsap County. Specifically, they allege that the defendants' regulations resulted in an unconstitutional taking of their property and a violation of 42 U.S.C. § 1983. They also contend that the County acted in an arbitrary and capricious manner in taxing their property and in imposing its permit standards. Finding no issue of material fact, we affirm.
In March 1981 Geraldine and Irvin Parkhurst (Parkhurst) purchased a 1.22 acre parcel of land in Silverdale, Washington, for $105,000. In 1982 and 1983, Ventures Northwest Limited Partnership (VNW) purchased 5.36 acres of land contiguous to the Parkhurst property for $467,000. Both parties purchased their properties for investment purposes.
The parcels are located within the 100-year flood plain of Clear Creek, and were undeveloped at the time of purchase. Previously, the land had been zoned residential and used for hay production. In May 1984, Kitsap County rezoned a 15.5 acre parcel that encompassed the subject properties to general business, subject to the owners obtaining approval of a planned unit development plan.
In 1986, Delco Capital Corporation (Delco), as part of an effort to develop a 53-acre site encompassing both parties' properties for a shopping center, entered into purchase and sale agreements with VNW and Parkhurst, contingent upon the issuance of necessary local, state and federal land use approvals for development. Under the terms of the agreements, VNW would receive $1,650,000 and Parkhurst would receive $452,000.
That same year, Delco applied to Kitsap County for a permit to fill and grade 5.51 acres of the property to bring it above the 100-year flood plain. Once completed, the project would cover approximately 89 percent of the site with impervious surfaces.
Delco also sought a Section 404 (Clean Water Act) permit from the Army Corps of Engineers (Corps) to fill wetlands on Parkhurst's property. The application met with "serious opposition from the EPA and others," leading Delco to believe that the Corps would not issue the permit. Accordingly, Delco cancelled its purchase and sale agreements with Parkhurst and VNW and abandoned the permit application before the Corps rendered a final decision. Apparently Delco abandoned its application with the County as well.
Parkhurst and VNW then decided to develop the property themselves, retaining the services of Gary S. Kucinski to file applications on their behalf. On August 11, 1988, Kucinski filed the wetland fill applications with the Corps.
On October 18, 1988, the Corps published and circulated the applications to various federal, state and local agencies and other interested parties. It also wrote Kucinski, asking him to supplement the applications with (1) a "[s]pecific description of the project purpose and need, including the type of commercial activity anticipated and a site development plan" and (2) an analysis of practicable alternatives. 1
The Corps explained that without this information, the federal agencies reviewing the application would be unable to determine whether the project complied with the Section 404(b)(1) Clean Water Act provision requiring a fill proposal to be "the least environmentally damaging alternative." The Corps further explained that it would review the Section 404(b)(1) factors at the end of the 30-day public interest review period, which began October 18, and at that time the Corps might ask Kucinski to consider possible mitigation measures in order to minimize perceived environmental impacts
On October 20, 1988, Kucinski responded to the Corps letter, stating that the development would have "retail, personal, professional and recreational uses." Kucinski resubmitted the same practicable alternatives analysis he submitted with the original applications. Meanwhile, the State Department of Ecology (DOE), at the Corps' request, 2 issued a "Notice of Application for Water Quality Certification and for Certification of Consistency with the Washington Coastal Zone Management Program."
After the public comment period, the Corps sent Kucinski comments from the Environmental Protection Agency (EPA), U.S. Fish and Wildlife Service, National Marine Fisheries Service, Friends of the Earth, Kitsap Audubon Society, and the Suquamish Tribe. All opposed the project and the three federal agencies all recommended denial of the permits. The agencies concluded that the proposed project would adversely impact the environment, that Parkhurst's and VNW's materials were inadequate to perform a Section 404(b)(1) analysis, and that Parkhurst and VNW had failed to overcome the Section 404(b)(1) The Corps' letter encouraged Parkhurst and VNW to meet with the agencies to resolve their differences. On December 5, 1988, Kucinski wrote to the Corps expressing concern over the federal agencies' negative comments. He also questioned the efficacy of the suggested meetings given agencies' predisposition to deny the permits.
presumption that less environmentally damaging alternatives were available.
On December 15, 1988, DOE submitted its comments to the Corps. 3 It found that the application failed to rebut the Section 404(b)(1) presumption or address proposed mitigation measures to offset wetland losses, and that the description of land uses were "vague and ambiguous." DOE concluded that it would be "unable to issue Section 401 Water Quality Certifications" on the project and could not recommend issuance of a Section 404 permit. It also found that the project conflicted with the goals of the Washington Coastal Zone Management Program because of its significant adverse impacts on wildlife habitat and water quality functions. See Chapter 173-201A WAC Water Quality Standards.
On February 9, 1989, the Corps wrote to Kucinski, urging him to work with agencies to resolve differences. It again sought additional information to complete the Section 404(b)(1) evaluation. Once again, Kucinski, on behalf of his clients, refused to provide further information, stating In June 1989, the Corps denied the permit applications, identifying three reasons for the denial: (1) non-compliance with Section 404(b)(1) guidelines; (2) the refusal of the State to authorize the project; and (3) the opposition of the U.S. Department of the Interior, the EPA, and the National Marine Fisheries Service.
that he had provided the Corps with the requested information on October 20, 1988.
In April 1989, while the Corps' decision on the Section 404 permits was pending, Parkhurst and VNW applied for a County permit to fill 20,000 cubic yards, and excavate 1,150 cubic yards to "facilitate the future development of the site." On April 10, 1989, the County denied the permit application.
After the denial of these permits, Atlantic Richfield Company (ARCO) offered to purchase slightly less than one acre of VNW's parcel as the site for a proposed AM/PM store. The offer was contingent upon obtaining permission to fill the site. ARCO then contacted the Corps, apparently presenting an alternatives analysis. Based on this meeting, ARCO withdrew its offer, concluding the Corps would not issue the necessary wetlands permit.
In 1990, the County commenced foreclosure proceedings against VNW for failure to pay County Road Improvement District and Utility Local Improvement District assessments and back taxes on its parcel. To protect its investment, VNW filed for Chapter 11 bankruptcy. At that time, VNW owed the County approximately $165,000 in back taxes and assessments.
On December 1, 1991, Parkhurst filed a complaint in Mason County Superior Court alleging that the County and State regulations, on their face and as applied, had denied them all economically viable use of the property and constituted a "taking" without just compensation; that the State and County had unlawfully taxed the property at a commercial value but prohibited commercial development; that Parkhurst had exhausted all administrative remedies available to resolve the dispute; and that VNW filed a similar complaint, which the court consolidated with the Parkhurst action. 5 Upon motions from the State and County, the trial court dismissed Parkhurst and VNW's claims on summary judgment.
the County and State had denied their civil rights in violation of 42 U.S.C. § 1983. 4
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