Filed
Washington State
Court of Appeals
Division Two
September 5, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
CHURCH OF THE DIVINE EARTH, No. 49854-5-II
Appellant,
v.
CITY OF TACOMA, PUBLISHED IN PART OPINION
Respondent.
SUTTON, J. — The Church of the Divine Earth (Church) appeals a judgment in favor of the
City of Tacoma (City) on the Church’s claim for damages under RCW 64.40.020 1 and its claim
for violation of the Public Records Act (PRA).2 The Church argues that some of the trial court’s
findings of fact are not supported by substantial evidence. The Church also argues that the trial
court erred by concluding that the City’s permit decision was not arbitrary or capricious and that
the City did not know or should not have known that the court would ultimately determine that the
building permit requirement it imposed was unlawful. The Church further argues that the trial
court erred by concluding that the City’s search was adequate to comply with the PRA. In addition,
the Church claims that the trial court erred by denying its motion to amend its complaint; by
1
RCW 64.40.020(1) creates a cause of action for damages resulting from agency actions on permit
applications that are arbitrary, capricious, or unlawful, or that exceed lawful authority if the agency
knew or reasonably should have known the action was unlawful or exceeded lawful authority.
2
Ch. 42.56 RCW.
No. 49854-5-II
granting the City’s motion in limine; and concluding, after an in camera review, that the City
properly exempted documents under the attorney-client privilege and the work product doctrine.
In the published portion of this opinion, we address the Church’s arguments regarding its
RCW 64.40.020 damages claim. We hold that the trial court did not err in granting the City’s
motion in limine, the trial court’s findings of fact are supported by substantial evidence, and the
trial court did not err in concluding that the City was not liable under RCW 64.40.020. In the
unpublished portion of this opinion, we address the Church’s remaining arguments. We affirm.
FACTS
On September 20, 2013, the Church, through its pastor Terry Kuehn, submitted a permit to
build a parsonage on a piece of property that the Church had recently purchased. As part of the
initial building permit process, the City’s planning employees conducted a review panel meeting
to review the permit application. After the City’s employees reviewed the permit application, it
imposed several conditions on the building permit, including a 30 foot right-of-way dedication.
Shortly after the Church’s permit application was first reviewed by the City’s employees, Kuehn
told City Senior Planner Shanta Frantz that the property would be used for church services. Frantz
informed Kuehn that a conditional use permit would be required to use the property for church
services. In October, Kuehn met with City employees and clarified that the property would not be
used for church services but would be solely used as a parsonage. Kuehn also requested a waiver
of all permitting conditions attached to the building permit for the parsonage.
Kuehn asserted that the conditions of the building permit violated the Church’s religious
liberties. Because Kuehn continued to assert that the development of the property was exempt
from conditions due to the property’s religious status, there was continued confusion over whether
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No. 49854-5-II
the property would be developed as a single family home (a parsonage) or as a church used for
religious services.
In January 2014, the City held another review panel meeting to review the building permit
conditions. After this meeting, Jennifer Kammerzell, a senior engineer in the City Public Works
division, recommended that the right-of-way dedication be reduced from 30 feet to 8 feet. City
Engineer Curtis Kingslover adopted Kammerzell’s recommendation that the dedication be reduced
to 8 feet.
The Church continued to contest the conditions placed on the building permit. As a result,
the directors of the three relevant City divisions (Public Works, Planning and Development
Services, and Environmental Services) met to discuss the Church’s permit application and whether
the permit conditions satisfied constitutional nexus and proportionality requirements under a
Nollan/Dolan3 analysis. After this meeting, the three division directors decided to remove all
conditions except for the eight foot right-of-way dedication. Peter Huffman, Director of Planning
and Development Services, wrote a letter to Kuehn documenting the directors’ decision and
3
“The ‘nexus’ and ‘rough proportionality’ tests are also called the ‘Nollan/Dolan’ tests, after the
United States Supreme Court’s decisions in Nollan v. California Coastal Comm’n, 483 U.S. 825,
107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987), and Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct.
2309, 129 L. Ed. 2d 304 (1994).” City of Federal Way v. Town & Country Real Estate, LLC, 161
Wn. App. 17, 44, 252 P.3d 382 (2011). The nexus test “requires an ‘essential nexus’ between the
negative impacts that a private property use generates and the conditions or prohibitions imposed
to restrict that use of private property.” Town & Country Real Estate, 161 Wn. App. at 44 (quoting
Nollan, 483 U.S. at 837). And the rough proportionality test requires some sort of individualized
determination that the dedication of private property “‘is related both in nature and extent to the
impact of the proposed development.’” Town & Country Real Estate, 161 Wn. App. at 44 (quoting
Dolan, 512 U.S. at 391).
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No. 49854-5-II
designating the letter as a decision that could be appealed to the hearing examiner. The Church
appealed to the hearing examiner.
The hearing examiner determined that the Church was challenging the dedication on
constitutional grounds. Because the hearing examiner concluded that it did not have jurisdiction
to decide constitutional issues, the hearing examiner granted the City’s motion for summary
judgment. The Church then filed a Land Use Petition Act (LUPA)4 appeal with the superior court.
At the LUPA appeal, the superior court concluded that the right-of-way dedication failed to satisfy
the Nollan/Dolan nexus and proportionality requirements.
In October 2014, the Church submitted a PRA request to the City. The City provided
approximately 3,500 pages of responsive documents. The City also provided approximately 200
pages of redacted documents and a privilege log that designated the documents as protected under
the attorney-client privilege and the work product doctrine. The City closed the Church’s PRA
request in January 2015. Later, the City learned that two responsive documents—a video
recording of the property and two pages of notes from Frantz—had not been provided to the
Church. When the City learned that the documents had mistakenly not been disclosed, it
immediately provided the documents to the Church.
I. COMPLAINT AND AMENDMENTS
When the Church filed its LUPA petition, it also filed a claim for damages against the City
under RCW 64.40.020. The Church later amended its complaint to add a claim for violations of
4
Ch. 36.70C RCW.
4
No. 49854-5-II
the PRA. The parties agreed to bifurcate the LUPA petition and the Church’s claim for damages
under RCW. 64.40.020 and his claims under the PRA.
After the Church’s LUPA petition was resolved, the Church moved to amend its complaint
to include a claim for civil rights violations under 42 U.S.C. § 1983 and an additional damages
claim based on offsite improvements, such as sidewalks and curbs, that the City had imposed after
the first review panel meeting. The trial court denied the motion to amend the complaint, ruling:
Well, I think on the takings on the first one, that it’s a futile amendment. I don’t
think it’s well taken, and so, yes, I would intend to deny it on its merits. The same
on the 64.40 because my recollection of the record is that that wasn’t part of it. And
in—that, meaning the sidewalks and the curbs at the time and in the posture that
the case came to me.
Clerk’s Papers (CP) at 1092-93.
II. IN CAMERA REVIEW OF REDACTED DOCUMENTS
In response to the Church’s records request, the City submitted a privilege log identifying
several documents that were redacted. The City asserted that the redacted documents were exempt
under the attorney-client privilege and the work product doctrine. The trial court conducted an in
camera review of approximately 200 pages of documents.
The documents can be summarized into the following groups:
Group 1: Group 1 documents contain several email chains between the deputy city
attorney, members of the review panel, and division directors discussing the
appropriate way to address the Church’s asserted legal arguments against the City’s
building permit conditions and the appropriate way to respond to the Church’s
waiver request. These documents were exempted as attorney-client privilege.
Group 2: Group 2 documents contain requests from the deputy city attorney for
additional information about the dedication and cost of offsite improvements in
order to prepare for arguments on the Church’s appeal of the permit decision. These
documents were exempted as attorney-client privilege.
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No. 49854-5-II
Group 3: Group 3 documents contain emails between the deputy city attorney and
members of the review panel addressing questions regarding responding to the
Church’s records request. These documents were exempted as attorney-client
privilege.
Group 4: Group 4 documents contain emails from the deputy city attorney
regarding draft pleadings and declarations with the drafts attached to the emails.
These documents were exempted as work product.
Sealed Exhibit. After an in camera review, the trial court entered an order finding that all the
documents were properly exempted under either the attorney-client privilege or the work product
doctrine and sealed the documents.
III. MOTION IN LIMINE
Before trial, the City filed a motion in limine to exclude evidence that the right-of-way
dedication requirement was for 30 feet rather than 8 feet. The City argued that the Church was
prohibited from relitigating whether the dedication was 30 feet or 8 feet because the LUPA court
had already found that the dedication was 8 feet. To support its motion, the City included the
LUPA court’s order, which struck out the reference to the 30 foot dedication and replaced it with
“8 foot dedication.” CP at 1709-10.
The trial court granted the City’s motion in limine to exclude evidence offered for the
purpose of disputing that the right-of-way condition at issue was eight feet. The trial court ruled
that the LUPA court had already found that the right-of-way dedication was eight feet and res
judicata applied. The matter proceeded to a bench trial.
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No. 49854-5-II
IV. TRIAL TESTIMONY
A. DAMAGES CLAIM—RCW 64.40.020
Craig Kuntz is the Senior Planning Examiner for the City. Kuntz acted as the coordinator
of the review panels for the Church’s building permit. A review panel “is a group of subject matter
experts that place conditions on new developments.” VII Verbatim Report of Proceedings (VRP)
at 806. Kuntz testified that at the review planning meetings, the panel considers the municipal
code “along with nexus and proportionality.” VII VRP at 810. On January 15, 2014, Kuntz placed
the Church’s permit application on another review panel to discuss the Church’s waiver requests.
At the time of the Church’s permit application, David Johnson was the City’s Building
Official and the Division Manager for Planning and Development Services. As the building
official, Johnson was responsible for ensuring building permits were consistent with the
development codes. Johnson discussed the Church’s permit application process with Kuntz and
reviewed the offsite conditions and the right-of-way dedication requirement for nexus and
proportionality. Johnson determined there was a nexus between the building project and the permit
requirements. Johnson wanted additional analysis regarding the proportionality of the
requirements, and Kuntz provided him the review panel’s recommendations for modification of
the conditions. Johnson reviewed the modification, which removed all conditions except for the
eight foot right-of-way dedication requirement, and he determined that the dedication requirement
was proportional.
Director Huffman also testified at trial. Huffman testified that he was familiar with the
nexus and proportionality analysis required by Nollan/Dolan and that the analysis is also contained
in the Tacoma Municipal Code. Huffman testified that he discussed the Church’s permit
7
No. 49854-5-II
application, including the possible offsite improvements, such as sidewalks and curbs, with
Johnson, Kammerzell, and the city attorney. At the meeting, Huffman reviewed the review panel’s
recommendations for the modification of the original permit conditions and reviewed the nexus
and proportionality.
B. PRA CLAIM
Lisa Anderson is responsible for processing the City’s public disclosure requests.
Anderson explained that when she first receives a PRA records request, she reviews the request
and determines which departments are most likely to have responsive records. Anderson then
explained that there are 16 departments in the City and each department has a public records
coordinator. In addition, departments with several divisions have sub-coordinators for the
different divisions. The coordinators are responsible for collecting the responsive records and
sending them to Anderson. Anderson is then responsible for reviewing all the documents and for
determining whether any exemptions or redactions are necessary.
Anderson provides a checklist to each public records coordinator to fill out before closing
a records request. The checklist includes reminders to search for records in both hard copy and
electronic formats, as well as file folders, emails, and project folders. Anderson testified that the
coordinators from Planning and Development Services and Public Works submitted completed
and comprehensive checklists documenting their record searches in this case.
Anderson also testified that when she originally received the Church’s records request, the
Church had incorrectly spelled Divine Earth. However, Anderson advised all the Departments to
check both the spelling on the request and the correct spelling. Anderson produced approximately
3,500 pages of responsive records to the Church’s records request.
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No. 49854-5-II
At the time of the Church’s records request, Heather Croston was tasked with coordinating
the public records response from Planning and Development Services. Croston testified that
Planning and Development Services had at least five or six drives that had to be searched for
responsive records. Each of the drives contained different information and were separate from the
operating system, which also had to be searched. Croston testified that she searched for documents
using the Church’s name, address, and permit number.
Croston testified about the two responsive records, the video and the notes, that were not
produced in the City’s original disclosure to the Church’s records request. Croston testified that
the video was not produced because it was not stored under the Church’s name, address, or permit
number. Croston testified that Frantz’s notes were not produced because Croston “assumed that
when [she] ran a report out of our operating system that they would automatically print on the
report” with all of the accompanying documents. VIII VRP at 1006. Croston made this
assumption because all other types of files on the operating system would print on the report.
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
After trial, the trial court made the following disputed findings of fact:
5. At the Review Panel meetings, City staff conducted a Nollan/Dolan analysis,
considering the impact that the construction of the parsonage would have on the
existing infrastructure and determined that the dedication requirement was made
necessary, in part, to address the impacts created by the new structure. For
example, the Church was building a parsonage on a vacant lot, which would create
an increase in both vehicular and pedestrian traffic.
....
16. On March 7, 2014, Craig Kuntz on behalf of the City provided [his] response
to the Church’s waiver request. The City denied the Church’s request that all
development conditions be dropped but it did modify the right of way dedication.
17. The Kuntz letter, the City’s response to the waiver request, included a
memorandum from Jennifer Kammerzell, which indicated that after consideration
of the applicant’s proposed and existing improvements, the City was reducing its
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No. 49854-5-II
required conditions and that the right of way dedication requirement along East B
Street would be reduced from 30 [feet] to [8] feet. . . .
....
29. In locating and providing records responsive to the Church’s request, the City
searched in all places reasonably likely to contain responsive materials. There was
detailed testimony at trial about how each department and sub-department at the
City processed the Church’s request for records as well as the about [sic] the various
methods for gathering and storing information.
30. Each department and sub-department (division) has an assigned public records
coordinator that works with the members of his or her department or sub-
department in searching for and collecting all responsive records. Each department
and sub-department keeps its records in various formats including hard copy and
electronically, in a manner that is specific to that department or sub-department.
Both hard copies and electronic documents were searched. The electronic
documents are maintained on various hard drives, servers, and databases, all of
which were searched for responsive records.
31. The City searched using appropriate search terms such as address, applicant
name, permit application number, and parcel number.
....
33. The City conducted a complete and detailed search that was broad enough in
scope to identify all responsive documents and materials even though two items
were missed and were not included in the City’s initial production: 1) a video
approximately two minutes in length showing the Church’s lot that was filmed on
January 13, 2014 by an intern, Ben Wells; and 2) portions of computer notes created
by Senior Planner Shanta Frantz in the fall of 2013.
34. The Public Records Coordinator from Planning and Development Services that
was handling this request believed that Ms. Frantz’s computer notes had printed out
along with other computer records, but the notes had not printed.
CP at 2401-07.
The trial court concluded that the City’s action in imposing the right-of-way dedication
was not arbitrary or capricious or made without lawful authority and that the City did not know
and should not have known that the dedication was unlawful. The trial court also concluded that
the City’s search for responsive records was adequate and, as a result, that the City did not violate
the PRA.
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No. 49854-5-II
The trial court entered judgment in favor of the City on both the Church’s claim for
damages under RCW 64.40.020 and its claim for violations of the PRA. The Church appeals.
ANALYSIS
The Church challenges the trial court’s judgment on its damages claim under RCW
64.40.020, arguing that the trial court erred in granting the City’s motion in limine, the trial court’s
findings of fact are not supported by substantial evidence, and the trial court erred in concluding
that the City was not liable for damages. We disagree.
I. DAMAGES CLAIM—RCW 64.40.020
A. MOTION IN LIMINE
The Church argues that the trial court abused its discretion by granting the City’s motion
in limine to exclude evidence that the right-of-way dedication was 30 feet rather than 8 feet, as
determined by the superior court in the LUPA appeal. We review the trial court’s ruling on
motions in limine for an abuse of discretion. Colley v. PeaceHealth, 177 Wn. App. 717, 723, 312
P.3d 989 (2013). The trial court abuses its discretion when its decision is manifestly unreasonable,
exercised on untenable grounds, or exercised for untenable reasons. Salas v. Hi-Tech Erectors,
168 Wn.2d 664, 668-69, 230 P.3d 583 (2010). Even if the trial court abuses its discretion in
granting a motion in limine, the appellant must demonstrate prejudice for this court to reverse.
Colley, 177 Wn. App. at 723.
Here, the Church argued that it was entitled to damages under RCW 64.40.020 in part
because the City’s imposition of a 30 foot right-of-way dedication violated the statute. The City
filed a motion in limine to exclude conflicting evidence regarding the dedication because the
superior court had determined that the City imposed an eight foot dedication in the earlier LUPA
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No. 49854-5-II
appeal. The trial court granted the City’s motion in limine because res judicata barred the Church
from relitigating a fact that had already been found in the LUPA case.
Although the trial court asserted that it was relying on res judicata, the applicable doctrine
in this case is the related doctrine of collateral estoppel. Res judicata prevents a party from
asserting the same claim or cause of action. Rains v. State, 100 Wn.2d 660, 665, 674 P.2d 165
(1983). In contrast, collateral estoppel prevents a second litigation of an issue between the parties,
even when a different cause of action is asserted. Rains, 100 Wn.2d at 665. Here, res judicata
does not apply because the Church was asserting a claim for damages under RCW 64.40.020,
which is a different cause of action than the LUPA appeal.
However, we may affirm the trial court’s judgment on any grounds established by the
pleadings and supported by the record, even if the trial court did not consider them. LaMon v.
Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989). The application of collateral estoppel is
an issue that we review de novo. Schibel v. Eymann, 189 Wn.2d 93, 98, 399 P.3d 1129 (2017).
Here, the record is sufficient to allow this court to perform a de novo review of whether collateral
estoppel properly supported the trial court’s decision to grant the City’s motion in limine.
Collateral estoppel bars relitigation of an issue in a later proceeding involving the same
parties. Schibel, 189 Wn.2d at 99.
For collateral estoppel to apply, the party seeking it must show (1) the issue in the
earlier proceeding is identical to the issue in the later proceeding, (2) the earlier
proceeding ended with a final judgment on the merits, (3) the party against whom
collateral estoppel is asserted was a party, or in privity with a party, to the earlier
proceeding, and (4) applying collateral estoppel would not be an injustice.
Schibel, 189 Wn.2d at 99.
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No. 49854-5-II
Here, the issue in the earlier proceeding was identical to the issue in the later proceeding
because both proceedings included the issue of whether the right-of-way dedication giving rise to
the Church’s cause of action for damages was 8 feet or 30 feet. The LUPA judgment was a final
judgment on the merits. And both the City and the Church were parties in the LUPA case and are
parties in the current appeal. Therefore, the only collateral estoppel factor at issue is whether
applying collateral estoppel would be an injustice to the Church.
The Church argues that applying collateral estoppel would be an injustice because it did
not have a full and fair opportunity to litigate the issue regarding the size of the right-of-way
dedication. But, the Church had the opportunity to litigate the issue at the LUPA appeal and chose
not to do so. When the LUPA court indicated that there may be some confusion about whether
the dedication was 8 feet or 30 feet, the Church responded,
Well, it’s my understanding that there was an effort to roll it back to 8 feet, but then
they were overruled by another department in the City to make it 30 feet. But for
the purpose of this hearing, it doesn’t matter.
CP at 1295. The Church could have argued whether the dedication was 8 feet or 30 feet, but
specifically chose not to do so in the LUPA action. Therefore, there would not be an injustice in
barring the Church from relitigating a finding of fact that the superior court explicitly made in the
prior LUPA action.
Because all 4 elements of collateral estoppel are satisfied, the Church was barred from
relitigating the issue of whether the right-of-way dedication was 8 feet or 30 feet. Therefore, we
affirm the trial court’s order granting the City’s motion in limine on collateral estoppel grounds.
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No. 49854-5-II
B. CHALLENGED FINDINGS OF FACT
We review challenged findings of fact for substantial evidence. Sunnyside Valley
Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003). Substantial evidence is
evidence sufficient to persuade a fair-minded person that the premise is true. Sunnyside Valley,
149 Wn.2d at 879. We review de novo whether the trial court’s findings of fact support the trial
court’s challenged conclusions of law. Scott’s Excavating Vancouver, LLC v. Winlock Props.,
LLC, 176 Wn. App. 335, 341-42, 308 P.3d 791 (2013). We consider unchallenged findings of fact
as verities on appeal. Kittitas County v. Kittitas County Conservation Coal., 176 Wn. App. 38, 54,
308 P.3d 745 (2013).
The Church assigns error to the following findings of fact:
5. At the Review Panel meetings, City staff conducted a Nollan/Dolan analysis,
considering the impact that the construction of the parsonage would have on the
existing infrastructure and determined that the dedication requirement was made
necessary, in part, to address the impacts created by the new structure. For
example, the Church was building a parsonage on a vacant lot, which would create
an increase in both vehicular and pedestrian traffic.
....
16. On March 7, 2014, Craig Kuntz, on behalf of the City provided [his] response
to the Church’s waiver request. The City denied the Church’s request that all
development conditions be dropped but it did modify the right of way dedication.
CP at 2401-03.5
5
The Church also assigns error to finding of fact 17. However, the Church does not provide
argument or authority on whether this finding of fact was supported by substantial evidence. We
will not consider assignments of error unsupported by argument or authority. RAP 10.3(a)(6);
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Therefore,
we decline to consider the Church’s assignment of error to finding of fact 17 and consider it a
verity on appeal.
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No. 49854-5-II
As an initial matter, the Church asserts that finding of fact 5 is properly considered a legal
conclusion rather than a finding of fact. We disagree.
There is a difference between whether a Nollan/Dolan analysis occurred and whether or
not the City’s Nollan/Dolan analysis justified the permit conditions imposed by the City. The
former is a fact, and the latter is a legal conclusion. Accordingly, finding of fact 5 is properly
reviewed as a finding of fact for substantial evidence.
Finding of fact 5 is supported by substantial evidence. “The ‘nexus’ and ‘rough
proportionality’ tests are also called the ‘Nollan/Dolan’ tests, after the United States Supreme
Court’s decisions in Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141, 97 L.
Ed. 2d 677 (1987), and Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304
(1994).” City of Federal Way v. Town & Country Real Estate, LLC, 161 Wn. App. 17, 44, 252
P.3d 382 (2011). At trial, several City employees who participated in the review panel meetings
testified that nexus and proportionality were the primary considerations in discussing and deciding
the requirements for building permits. And the employees testified that their discussions regarding
nexus and proportionality occurred in the review panel meetings regarding the Church’s permit
application. Because nexus and proportionality are the requirements under the Nollan/Dolan test,
discussions regarding nexus and proportionality are the equivalent of conducting a Nollan/Dolan
analysis. Moreover, because the trial testimony establishes that the City employees discussed
nexus and proportionality at the review panel meetings, substantial evidence supports the trial
court’s finding that “City staff conducted a Nollan/Dolan analysis.” CP at 2401.
The remainder of finding of fact 5 is also supported by substantial evidence. The Church
argues that the lot was not a vacant lot because a single family home had previously been built on
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No. 49854-5-II
the property. But witnesses testified that the house that had previously been built on the lot had
been demolished and that the lot was considered a vacant lot. Accordingly, substantial evidence
supports the remainder of the trial court’s finding of fact 5 that the lot was vacant.
The Church also argues that finding of fact 16 is unsupported by substantial evidence
because the letter from Kuntz could not modify anything. But Kuntz testified that, at the time of
the letter, the City had changed the right-of-way dedication from 30 feet to 8 feet. Accordingly,
at that point, the condition was modified. Therefore, the trial court’s finding of fact 16 is supported
by substantial evidence.
C. LIABILITY UNDER RCW 64.40.020
The Church assigns error to all of the trial court’s conclusions of law regarding the City’s
liability under RCW 64.40.020. RCW 64.40.020(1) states,
Owners of a property interest who have filed an application for a permit have an
action for damages to obtain relief from acts of an agency which are arbitrary,
capricious, unlawful, or exceed lawful authority . . . . PROVIDED, That the action
is unlawful or in excess of lawful authority only if the final decision of the agency
was made with knowledge of its unlawfulness or that it was in excess of lawful
authority, or it should reasonably have been known to have been unlawful or in
excess of lawful authority.
Therefore, there are three grounds for imposing liability under RCW 64.40.020: (1) the action was
arbitrary or capricious, (2) the City knew or should have known that the act exceeded its lawful
authority, or (3) the City knew or should have known that its act was unlawful. The trial court
concluded that the Church did not establish any of the three grounds required under RCW
64.40.020.
1. Arbitrary or Capricious
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No. 49854-5-II
An agency action is arbitrary or capricious if it “‘is willful and unreasoning and taken
without regard to the attending facts or circumstances.’” Port of Seattle v. Pollution Control
Hearings Bd., 151 Wn.2d 568, 589, 90 P.3d 659 (2004) (internal quotation marks omitted)
(quoting Wash. Indep. Tel. Ass’n v. Wash. Utils. & Transp. Comm’n, 149 Wn.2d 17, 26, 65 P.3d
319 (2003)). “Where there is room for two opinions, and the agency acted honestly and upon due
consideration, this court should not find that an action was arbitrary and capricious, even though
this court may have reached the opposite conclusion.” Port of Seattle, 151 Wn.2d at 589.
Here, the trial court did not err by concluding that the City’s decision to impose a right-of-
way dedication on the Church’s building permit was not arbitrary and capricious. The City’s
decision was not willful and it did not act unreasonably because the trial court found that the City’s
employees had conducted a Nollan/Dolan analysis. And the decision was made with regard to the
attending facts or circumstances because the trial court found that the review panel considered “the
impacts created by the proposed development, including to the pedestrian traffic, vehicular traffic,
parking, sidewalks, and driveway access.” CP at 2401. Even though the LUPA court ultimately
disagreed with the City’s decision, the trial court’s findings of fact support its conclusion that the
decision was not arbitrary or capricious.
The Church also argues that the LUPA court’s finding that the condition was
unconstitutional renders the City’s action per se arbitrary. However, in the cases on which the
Church relies, the courts held that the agency actions at issue were unconstitutional because they
were arbitrary or capricious; the agency actions were not arbitrary and capricious because they
were unconstitutional. See, e.g., Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 962,
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No. 49854-5-II
954 P.2d 250 (1998). Therefore, the Church’s arguments do not show that the trial court erred in
concluding that the City’s action was not arbitrary or capricious.
2. Exceeding Lawful Authority
The Church does not argue that the City does not have the authority to impose conditions
in building permits, and it does not argue that the City does not have the authority to require right-
of-way dedications as a requirement in building permits. Rather, the Church argues that the “City
has no ‘lawful authority’ to violate its own code, state statute and the U.S. Constitution.” Br. of
Appellant at 37. However, an unlawful act is not the same as an agency action performed without
lawful authority.
An agency action performed without lawful authority is also known as an ultra vires act.
See Ferlin v. Chuckanut Cmty. Forest Park Dist., 1 Wn. App. 2d 102, 108, 404 P.3d 90 (2017).
“‘Ultra vires acts are those performed with no legal authority and are characterized as void on the
basis that no power to act existed, even where proper procedural requirements are followed.’”
Ferlin, 1 Wn. App. 2d at 108 (quoting S. Tacoma Way, LLC v. State, 169 Wn.2d 118, 123, 233
P.3d 871 (2010)). Even when an agency act violates the agency’s statutory directive, it is not
considered an ultra vires act if the act is within the agency’s realm of power. Bd. of Regents v.
City of Seattle, 108 Wn.2d 545, 552, 741 P.2d 11 (1987).
Here, the City acted within its realm of power to impose conditions on building permits.
Simply because the LUPA court later found that the City’s action was unlawful, the City’s
imposition of conditions on the Church’s building permit was not an ultra vires act. Therefore, the
trial court properly concluded that the City did not act without lawful authority for the purposes of
liability under RCW 64.40.020.
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No. 49854-5-II
3. Unlawful Act
Finally, the Church argues that the trial court erred in concluding that the City did not know
or should not have known that imposing the right-of-way dedication requirement on the building
permit was unlawful. We disagree.
It is undisputed that the right-of-way dedication requirement was ultimately determined to
be an unlawful condition on the Church’s building permit. The relevant question is whether the
City knew or should have known that the right-of-way dedication requirement was unlawful at the
time the City imposed it. To that end, the trial court made the following conclusions of law:
4. The City reasonably believed that the development conditions it attached to the
permit had a nexus to the project and were proportional to the Church’s project.
5. The City of Tacoma did not know and should not have reasonably known that its
requirement for a dedication of right of way would be considered violative of
Nollan/Dolan by the superior court.
CP at 2408.
Here, the Church’s argument is essentially that because the trial court ultimately
determined that the City’s right-of-way dedication requirement was unlawful, the City knew or
should have known that it was unlawful at the time it imposed the requirement. And the Church
argues that the City should have known that the condition was unlawful because the Church
objected to the condition. Neither of these arguments have merit.
The Church primarily relies on the LUPA court’s decision to argue that the City knew or
should have known that its decision was unlawful. However, LUPA explicitly prohibits this
analysis. RCW 36.70C.130(2) states that “[a] grant of relief by itself may not be deemed to
establish liability for monetary damages or compensation.” Therefore, the Church must show
something more than simply that the City’s decision was ultimately reversed under LUPA.
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No. 49854-5-II
Here, the trial court found that the City’s employees performed reviews before imposing
the requirements to the Church’s building permit. The trial court further found that the City’s
employees had performed a Nollan/Dolan analysis in their review of the permit application and,
after considering the impact of the Church’s proposed development, determined that the dedication
requirement was necessary. These facts support the trial court’s conclusion that the City
reasonably believed that the development conditions had a nexus to the project and were
proportional. In other words, the City reasonably believed that the dedication satisfied the
requirements of Nollan/Dolan. Because the City reasonably believed that it satisfied the
requirements of Nollan/Dolan, it did not know and should not have known that its action was
unlawful at the time it took the action. Accordingly, the trial court did not err in its conclusions of
law 4 and 5.
This conclusion is confirmed by the terms of chapter 64.40 RCW itself. As noted, RCW
64.40.020(1) provides:
[an] action is unlawful or in excess of lawful authority only if the final decision of
the agency was made with knowledge of its unlawfulness or that it was in excess
of lawful authority, or it should reasonably have been known to have been unlawful
or in excess of lawful authority.
The evidence does not support that City officials in fact knew that their actions were unlawful
when taken and, as already shown, the City’s actions were within its authority. One could, as the
Church invites, hold that the City should have known its actions were unlawful because they were
ultimately reversed. That, however, would transform chapter 64.40 RCW into an insurance system
in which local governments would indemnify applicants for losses from any action later deemed
20
No. 49854-5-II
unlawful. Nothing in the statute’s terms or its purpose as inferred from those terms suggests that
was the legislature’s intent.
Finally, the fact that the Church objected to the dedication does not show that the City
knew or should have known that the right-of-way dedication violated the Nollan/Dolan
requirements. The trial court found that after the Church objected to the requirements attached to
the building permit, the City reviewed and modified the conditions. Simply showing that the
Church and the City disagreed about what satisfied the Nollan/Dolan requirements is insufficient
to show that the City knew or should have known that the superior court would ultimately conclude
that the condition violated the Nollan/Dolan analysis. Accordingly, the trial court did not err in
concluding that the City did not know and should not have known that the dedication requirement
would later be found to violate Nollan/Dolan and, therefore, was unlawful.
We hold that the trial court did not err in granting the City’s motion in limine, the trial
court’s findings of fact are supported by substantial evidence, and the trial court did not err in
concluding that the City was not liable under RCW 64.40.020.
A majority of the panel having determined that only the foregoing portion of this opinion will
be printed in the Washington Appellate Reports and that the remainder shall be filed for public record
pursuant to RCW 2.06.040, it is so ordered.
The Church argues that the trial court erred in denying its motion to amend its complaint
to include a civil rights claim and to include damages for additional offsite improvements that were
originally imposed by the City. The Church also challenges the trial court’s judgment on its PRA
claim, arguing that the trial court erred in concluding that the City properly redacted documents,
the trial court’s findings of fact are not supported by substantial evidence, and the trial court erred
21
No. 49854-5-II
by concluding that the City performed an adequate search and, thus, did not violate the PRA. We
affirm.
II. MOTION TO AMEND
The Church argues that the trial court erred by denying its motion to amend its complaint
to add a claim for a violation of civil rights under 42 U.S.C. § 1983 and to add a claim that the
City was liable for damages for imposing a condition that the Church install sidewalks because
amendments should be freely given. The City argues that the trial court did not abuse its discretion
by denying the motion to amend because the amendment to add a § 1983 claim would have been
futile and the claim for damages for the sidewalk condition was no longer at issue. We agree with
the City.
We review a trial court’s denial of a motion to amend a complaint for an abuse of discretion.
Nakata v. Blue Bird, Inc., 146 Wn. App. 267, 278, 191 P.3d 900 (2008). CR 15(a) allows a plaintiff
to amend a complaint by leave of the court. Leave of the court should be “freely given when
justice so requires.” CR 15(a). A trial court appropriately denies a motion to amend a complaint
when the amended claim is futile. Nakata, 146 Wn. App. at 278.
A. 42 U.S.C. § 1983 CLAIM
The Church filed a motion to amend its complaint to add a 42 U.S.C. § 1983 claim based
on its claim that the LUPA court found that the City’s action constituted an unconstitutional taking.
The trial court denied the motion to amend, concluding that amending the complaint to add a
§ 1983 claim would be futile. Because there was no unconstitutional taking that would support
a § 1983 claim, the trial court did not abuse its discretion by denying the Church’s motion to amend
its complaint to add a § 1983 claim.
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No. 49854-5-II
42 U.S.C. § 1983 provides that a person who deprives a citizen of any constitutional right
under the color of any statute, ordinance, regulation, custom, or usage is liable to the injured party.
Here, the trial court characterized the Church’s § 1983 claim as a takings claim, and the Church
did not dispute this characterization. The trial court very clearly ruled that there was not a
regulatory taking by the City in this case. “In a regulatory takings claim, one threshold issue is
whether a city’s decision denies a landowner a fundamental attribute of property ownership, such
as the right to possess, exclude others, dispose of, or make some economically viable use of the
property.” Kinderace LLC v. City of Sammamish, 194 Wn. App. 835, 843, 379 P.3d 135 (2016).
The trial court concluded that there was no regulatory taking of the Church’s property
because the right-of-way was never actually imposed or enforced against the Church. Therefore,
the Church would not be able to meet its burden to show that there was a regulatory taking that
would support a § 1983 claim. Because the Church could not meet its burden to show a regulatory
taking and it provided no other argument supporting its motion to amend its complaint to add a
§ 1983 claim, the trial court did not abuse its discretion by denying the motion to amend the
complaint to add a § 1983 claim.6
B. DAMAGES FOR SIDEWALKS
The Church also argues that the trial court erred by denying the Church’s proposed
amendment to add a claim for damages as a result of “offsite improvements such as sidewalks and
6
On appeal, the Church seems to argue that the § 1983 claim was actually based on the fact that
the exaction violated Nollan. However, the Church has offered no authority that a permit condition
that ultimately fails the Nolan nexus analysis supports a § 1983 claim. DeHeer v. Seattle Post-
Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962) (“Where no authorities are cited in support
of a proposition, the court is not required to search out authorities, but may assume that counsel,
after diligent search, has found none.”).
23
No. 49854-5-II
curbs.” CP at 501. However, the trial court denied the amendment because the requirement that
the Church install sidewalks and curbs had already been removed by the time the hearing examiner
and the LUPA court considered the Church’s permit appeal. The Church argues that the trial court
erred because the final decision was the letter from Director Huffman and the letter included the
sidewalk conditions. The City argues that the final decision was the decision of the hearing
examiner. The trial court did not abuse its discretion by concluding that the final decision was the
hearing examiner’s decision, and therefore, the trial court did not abuse its discretion by denying
the Church’s motion to amend to add a claim for offsite improvements.
For the purposes of a claim under RCW 64.40.020, an act giving rise to liability for
damages is a “final decision by an agency.” RCW 64.40.010(6). Chapter 64.40 RCW does not
define “final decision.” However, for the purposes of LUPA, a building permit does not become
a final decision until the administrative review process created by the permitting authority
concludes. Durland v. San Juan County, 182 Wn.2d 55, 64-65, 340 P.3d 191 (2014). Under
Tacoma Municipal Code (TMC) 1.23.050, the hearing examiner has jurisdiction over appeals from
the decision of the Director of Planning and Development Services. Because the TMC provides
for an administrative appeals process, the City’s permit decision was not final until that
administrative appeals process concluded. Accordingly, the hearing examiner’s decision was the
final decision by the City that is actionable under RCW 64.40.020.
Here, the hearing examiner’s decision did not include offsite improvements, such as
sidewalks and curbs, because the City had dropped those conditions from the building permit
before the hearing examiner made a decision. The final decision of the agency included only the
right-of-way dedication requirement for the building permit. Therefore, only the right-of-way
24
No. 49854-5-II
dedication requirement was actionable under RCW 64.40.020. Because only the right-of-way
dedication requirement was actionable under RCW 64.40.020, an amendment to add a claim for
offsite improvements would have been futile. Thus, the trial court did not abuse its discretion by
denying the Church’s motion to amend its complaint to add a claim for damages under RCW
64.40.020.
III. PRA CLAIM
In addition to its claim for damages under RCW 64.40.020, the Church also brought a claim
based on asserted violations of the PRA.7 First, the Church argues that the trial court erred by
concluding, after an in camera review, that the City properly exempted documents under the
attorney-client privilege and the work product doctrine. After an independent review of the
documents, we conclude that the trial court did not err.
Second, the Church argues that the trial court erred in entering judgment in favor of the
City on its PRA claim because the trial court’s findings of fact regarding the scope of the City’s
search were not supported by substantial evidence. And the Church asserts that the trial court erred
in its conclusions of law because the City silently withheld a video and notes that were responsive
to the Church’s PRA request. The trial court’s findings of fact regarding the scope of the City’s
search are supported by substantial evidence. And the trial court properly concluded that the City’s
search was adequate. Therefore, the City did not violate the PRA.
7
The Church did not designate the trial court’s order following the in camera review in its notice
of appeal. RAP 5.3(a) requires that the notice of appeal “designate the decision or part of decision
which the party wants reviewed.” Although the Church failed to properly designate the trial court’s
order following the in camera review, the order is part of the record on appeal, and we exercise
our discretion under RAP 1.2 to review it.
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No. 49854-5-II
A. IN CAMERA REVIEW
“The PRA is a strongly worded mandate for broad disclosure of public records.”
Neighborhood Alliance of Spokane County v. Spokane County, 172 Wn.2d 702, 714, 261 P.3d 119
(2011). Agencies are required to disclose any public record on request unless it falls within a
specific enumerated exemption. RCW 42.56.070(1). The agency bears the burden to demonstrate
that a record falls within an exemption. Neighborhood Alliance, 172 Wn.2d at 715.
Under the PRA, records are exempt from disclosure if they would not be available to other
parties to a controversy under the civil rules for discovery. RCW 42.56.290. Under CR 26(b)(4),
the “mental impressions, conclusions, opinions, or legal theories of an attorney . . . of a party
concerning . . . litigation” are not discoverable and, therefore, are exempt under the PRA. “[A]ny
communication made by the client to [his or her attorney], or [the attorney’s] advice given thereon
in the course of professional employment” is also protected from disclosure under the PRA. RCW
5.60.060(2)(a).
We performed an independent in camera review of the documents. The Group 1 documents
fall within the scope of the protected attorney-client privilege because they are communications
from the City to their attorney and contain the attorney’s advice on addressing the Church’s
challenges to the City’s permit conditions. The Group 2 documents were also properly exempted
under the attorney-client privilege because they are communications between the attorney and the
City employees in preparation for the hearing before the hearing examiner regarding the Church’s
appeal of the building permit requirements. And the Group 3 documents were properly exempted
under the attorney-client privilege because they were communications between the City employees
and the City attorney seeking advice on replying to the Church’s PRA request. Finally, the Group
26
No. 49854-5-II
4 documents were properly exempted as work product because they contained drafts of documents
that the City attorney was preparing for the hearing in front of the hearing examiner.
Because all of the documents were properly exempted or redacted under the attorney-client
privilege or the work product doctrine, the trial court did not err in its order following the in camera
review.
B. CHALLENGED FINDINGS OF FACT
As noted above, we review challenged findings of fact for substantial evidence. Sunnyside
Valley, 149 Wn.2d at 879. The Church challenges the following findings of fact regarding its PRA
claim:
29. In locating and providing records responsive to the Church’s request, the City
searched in all places reasonably likely to contain responsive materials. There was
detailed testimony at trial about how each department and sub-department at the
City processed the Church’s request for records as well as the about [sic] the various
methods for gathering and storing information.
30. Each department and sub-department (division) has an assigned public records
coordinator that works with members of his or her department or sub-department
in searching for and collecting all responsive records. Each department and sub-
department keeps its records in various formats including hard copy and
electronically, in a manner that is specific to that department or sub-department.
Both hard copies and electronic documents were searched. The electronic
documents are maintained on various hard drives, servers, and databases, all of
which were searched for responsive records.
31. The City searched using the appropriate search terms such as address, applicant
name, permit application number, and parcel number.
....
33. The City conducted a complete and detailed search that was broad enough in
scope to identify all responsive documents and materials even though two items
were missed and were not included in the City’s initial production: 1) a video
approximately two minutes in length showing the Church’s lot that was filmed on
January 13, 2014 by an intern, Ben Wells; and 2) portions of computer notes created
by Senior Planner Shanta Frantz in the fall of 2013.
34. The Public Records Coordinator from Planning and Development Services that
was handling this request believed that Ms. Frantz’s computer notes had printed out
along with other computer records, but the notes had not printed.
27
No. 49854-5-II
CP at 2406-07.
The Church argues that finding of fact 29 is not supported by substantial evidence because
neither the video nor the notes were found and, therefore, the City could not have searched in all
places reasonably likely to contain responsive documents because the City did not find these two
specific documents. However, there is a difference between searching all places reasonably likely
to contain responsive documents and actually finding every responsive document in those
locations. The City employees responsible for responding to the Church’s PRA request testified
that they searched all the servers, hard drives, and files in the planning and land use divisions.
They also asked all the employees who had handled the Church’s permit application to search their
servers and drives for potentially responsive documents. And they searched hard copies of files.
These were all the places where responsive documents were likely to be found. Therefore, the
trial court’s finding of fact 29 was supported by substantial evidence.
The Church argues that finding of fact 30 is not supported by substantial evidence because
it “doesn’t say they were thoroughly searched or that located notes were produced.” Br. of
Appellant at 54. However, the Church’s argument does not demonstrate that the trial court’s
finding was unsupported by substantial evidence. At best, the Church’s argument addresses why
this specific finding of fact may not support the trial court’s conclusion that the City’s search was
adequate. Because the City’s employees testified that they searched both hard copy and electronic
documents, the trial court’s finding of fact 30 was supported by substantial evidence.
The Church argues that finding of fact 31 is not supported by substantial evidence because
the search terms did not include any dates. The Church’s argument has no relevance to whether
28
No. 49854-5-II
the trial court’s finding is supported by substantial evidence because the trial court did not find
that the City searched using dates as a search term. The coordinator for the PRA request at the
planning department testified that the search terms used were address, applicant name, and permit
application number. Therefore, the trial court’s finding of fact 31 is supported by substantial
evidence as to the search terms for address, applicant name, and permit application number.
The Church argues that finding of fact 33 is not supported by substantial evidence because
“[i]f the search was indeed ‘complete and detailed’ of the [operating system] and the drive which
held the videos they would have been located and produced.” Br. of Appellant at 54. Again, the
Church’s argument is flawed because the trial court’s finding of fact refers to the search not to the
production of records. Here, it is undisputed that the production of records was incomplete because
two specific documents were not provided to the Church in response to its records request.
However, the search included all the drives and servers in the relevant divisions, and the search
included requests to all relevant employees to search their records, servers, and emails. Although
two specific records were not produced in the City’s response to the Church’s records request,
there was no evidence that there were specific places that the City failed to search or that there
were employees who were not asked for relevant records. Therefore, substantial evidence supports
the trial court’s finding 33 that the City’s search was complete and detailed even if it resulted in
the City failing to provide two specific documents that were responsive to the Church’s records
request after it had already produced approximately 3,500 pages of responsive documents.
The Church argues that finding of fact 34 is not supported by substantial evidence because
the coordinator “assumed” the notes had been printed rather than believed the notes had been
printed. Br. of Appellant at 54. It is unclear how the use of the word assumed demonstrates that
29
No. 49854-5-II
the trial court’s finding was not supported by substantial evidence. Croston did testify that she
assumed that Franz’s computer notes had been printed at the same time that the report had been
printed. But in this context, the Church fails to show how there is any substantive difference
between Croston’s use of the word assume and the trial court’s use of the word believe. Therefore,
the trial court’s finding of fact 34 that Croston believed that the notes had been printed was
supported by substantial evidence.
C. ADEQUATE SEARCH
The adequacy of a search for public records is judged by a standard of reasonableness—
the search must be reasonably calculated to uncover all responsive documents. Neighborhood
Alliance, 172 Wn.2d at 720. “[T]he issue of whether the search was reasonably calculated and
therefore adequate is separate from whether additional responsive documents exist but are not
found.” Neighborhood Alliance, 172 Wn.2d at 720. “[T]he focus of the inquiry is not whether
responsive documents do in fact exist, but whether the search itself was adequate.” Neighborhood
Alliance, 172 Wn.2d at 719-20.
“What will be considered reasonable will depend on the facts of each case.” Neighborhood
Alliance, 172 Wn.2d at 720. Agencies must perform more than a perfunctory search, follow
obvious leads, and search more than one place if there are additional sources for requested
information. Neighborhood Alliance, 172 Wn.2d at 720. “Th[at] is not to say, of course, that an
agency must search every possible place a record may conceivably be stored, but only those places
where it is reasonably likely to be found.” Neighborhood Alliance, 172 Wn.2d at 720.
The Church argues that the City’s search could not have been adequate because the City
failed to find two specific documents. However, the Church’s argument completely disregards all
30
No. 49854-5-II
the case law regarding adequate searches. See, e.g., Neighborhood Alliance, 172 Wn.2d at 720;
Kozol v. Wash. State Dept. of Corr., 192 Wn. App. 1, 8-9, 366 P.3d 933 (2015); Forbes v. City of
Gold Bar, 171 Wn. App. 857, 866, 288 P.3d 384 (2012). And it relies on an incorrect legal
standard. The law does not require a thorough search, but an adequate search. As explained above,
our Supreme Court has made it clear that an agency’s failure to locate or disclose specific
documents is not a PRA violation if the agency made an adequate search for responsive records.
Considering the standards for determining whether an agency has performed an adequate
search, the trial court’s conclusions of law were supported by its findings of fact. The trial court
properly concluded that the City performed more than a perfunctory search and included more
than a single system because the trial court found that the City searched both hard copy and
electronic documents, as well as various hard drives, servers, and databases. The trial court’s
findings also support the trial court’s conclusion that the City searched in all places reasonably
likely to contain responsive materials. And the trial court properly concluded that the search was
adequate because the trial court found that the City used numerous relevant search terms and used
both the misspelled names submitted in the Church’s records request, as well as the correctly
spelled names. Under the standard set by our Supreme Court, the City performed an adequate
search in response to the Church’s PRA request. Therefore, the trial court properly concluded that
the City did not violate the PRA by failing to disclose the video and notes in its response to the
Church’s records request.
ATTORNEY FEES
Both parties request attorney fees under RCW 42.56.550 and RCW 64.40.020. RCW
42.56.550(4) states,
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No. 49854-5-II
Any person who prevails against an agency in any action in the courts seeking the
right to inspect or copy any public record or the right to receive a response to a
public record request within a reasonable amount of time shall be awarded all costs,
including reasonable attorney fees, incurred in connection with such legal action.
And RCW 64.40.020(2) provides that the prevailing party in an action under chapter 64.40 RCW
may be entitled to reasonable costs and attorney fees. Because the Church does not prevail on its
appeal on either the claim for damages under RCW 64.40.020 or its claim under the PRA, the
Church should not be entitled to an award of attorney fees and costs on appeal.
Under the plain language of RCW 42.56.550, the City is the agency, and not a party
prevailing against an agency in a PRA action. Therefore, the City is not entitled to attorney fees
under the PRA. However, the City is the prevailing party on the RCW 64.40.020 claim. Therefore,
we award the City its reasonable attorney fees for prevailing on the appeal for the RCW 64.40.020
claim.
We affirm.
SUTTON, J.
We concur:
LEE, A.C.J.
WORSWICK, J.
32
Church Of The Divine Earth v. City Of Tacoma
Combined Opinion