Archive for the ‘Washington Court of Appeals’ category

American Traffic Solutions v. City of Bellingham – Automated Traffic Safety Cameras

September 9, 2011

Division I of the Court of Appeals held on Tuesday that a proposed Bellingham initiative, which would prohibit the City from installing or using an automated traffic camera system unless approved by a majority of the city council and a majority of the voters, exceeded the lawful scope of the local initiative power.  An initiative is beyond the scope of the initiative power if it involves powers granted by the legislature to the governing body of a city, rather than the city as a corporate entity.  The Court reasoned that because RCW 46.63.170, authorizing the use of automated traffic safety cameras, specifies that in order to use automatic traffic safety cameras for the issuance of traffic infractions, the “appropriate local legislative authority” must first enact an ordinance allowing for their use, the exercise of the city council’s authority was not subject to initiative.

In addition, the Court reversed the trial court, which had granted the initiative sponsors’ special motion to strike ATS’s complaint and imposed penalties under the Anti-SLAPP (Strategic Lawsuits Against Public Participation) statute.  The Anti-SLAPP statute allows a defendant to make a special motion to strike any claim based on his or her “public participation and petition.”  In order to overcome a special motion to strike, the plaintiff may show that it will likely succeed on the merits of the claim.  Because the court concluded that ATS would likely succeed on the merits of its claim, it reversed the trial court’s decision.

However, the Court of Appeals denied ATS’s request for an injunction preventing the initiative from being placed on the ballot.  The court reasoned that, even if placed on the ballot and passed by a majority of the voters, the initiative would have no legal force.  Consequently, ATS could not establish “actual and substantial injury” to its contractual interests justifying injunctive relief.

A full copy of the opinion can be accessed here.


Puget Sound Energy v. City of Bellingham – Utility Taxes

September 7, 2011

In Puget Sound Energy v. City of Bellingham, Division I of the Court of Appeals affirmed the City’s tax assessment and penalties against PSE for unpaid utility tax.  Prior to the assessment, PSE paid city B&O tax on revenue generated by “non-utility” activities, such as billing initiation charges, connection and reconnection charges, disconnection visit charges, and late payment fees.   PSE paid city utility taxes only on the revenue it received from both the “per kilowatt hour energy charges” and the “basic or customer charges” paid by its Bellingham customers.  Reasoning that that “the business” of selling or furnishing light and power is not limited to the actual provision of electricity under Bellingham’s utility tax ordinance, the Court upheld the assessment.

The full opinion is available here.

West v. Washington State Department of Natural Resources

September 2, 2011

In West, Division II of the Court of Appeals held that the Department of Natural Resources (DNR) violated the Public Records Act by not responding to West’s public records requests within five business days.  After the DNR received the requests, the assistant public records officer acknowledged receipt of the request the same day.  However, the public records administrator wrote to West eleven days later, stating that the DNR was “in the research phase of the eight records requests” received and that many of the requests could be quite voluminous.  She also asked clarification questions about the request and stated that she required a response to these questions before she could provide a reasonable estimate of time for the DNR’s response. 

 When a public agency receives a public records request, it must within five business days (1) provide the record; (2) provide an internet address and link on the agency’s web site to the specific records requested; (3) acknowledge receipt of the request and provide a reasonable estimate of the time the agency will require to respond to the request; or (4) deny the public record request.  RCW 42.56.520.  In this case, although the DNR acknowledged receipt of the request within five business days, failure to include a reasonable estimate of the time to respond resulted in a violation of the PRA.  Despite the DNR’s arguments that the PRA does not provide for a stand-alone remedy for failure to strictly comply with the five-day requirement, the court remanded the case to the trial court to assess an attorney fee and penalty award for the violation.

 However, the court also held that the DNR did not violate the Public Records Act because it failed to disclose a document that was inadvertently lost prior to the time the request was made.

Andrews v. Harrison Medical Center: Anti-Nepotism Policies

January 24, 2011

In a recent unpublished case, the Washington Court of Appeals examined whether the public hospital district’s anti-nepotism policy violated Washington’s Law Against Discrimination (WLAD). The district’s policy stated that it would not offer employment, promotions, or transfers that would permit one relative to: (a) directly supervise or control the work of another, (b) evaluate or audit the work performance of another, (c) make or recommend salary decisions affecting the other, and/or (d) take disciplinary action affecting the other. Relatives included spouses, but did not include persons in “committed intimate relationships.” Under the WLAD, it is an unfair practice for any employer to refuse to hire any person because of marital status unless a bona fide occupational qualification or a business necessity applies. In addition, it is an unfair practice for any employer to discharge or bar from employment or discriminate in compensation or other terms or conditions of employment because of marital status.

The district argued that its anti-nepotism policy was based upon the business necessities presented by the situations in (a) through (d) above. However, the Andrewses argued that the district’s reasons were pretextual because the policy did not apply to persons in a “committed intimate relationship,” which would also raise the type of conflicts cited by the district. Though the district argued that the administrative burden of applying its anti-nepotism policy to committed intimate relationships was too great, the court ultimately remanded the case back to a jury to determine whether the policy was pretext for discrimination against married couples. This case serves as a reminder that discrimination based upon marital status is unlawful in Washington. If public employers adopt such a policy, it should include all types of committed relationships, unless there are specific, valid business reasons to exclude such relationships. In addition, public employers must take care to continue to follow applicable conflict of interest laws and ordinances, even if an anti-nepotism policy has not been adopted.

The opinion can be read in full here.

Gendler v. Batiste – Public Records Act and Traffic Accident Reports

November 30, 2010

In Gendler v. Batiste, the Court of Appeals held that the Washington State Patrol (WSP) was required to disclose historical bicycle accident records of accidents occurring on Seattle’s Montlake Bridge.  The requestor had suffered serious injuries when his bike tire became wedged in the bridge’s grating.  The requestor suspected that the bridge had been unsafe for cyclists since 1999 when the State replaced the bridge decking, and therefore, he sought records of other bicycle accidents from the WSP.  The WSP claimed that these records were exempt from public disclosure under federal law, 23 U.S.C. § 409, unless the requestor agreed not to use the information in litigation against the State. 

Under the Federal Highway Safety Act, states are required to identify and correct high-collision locations by collecting traffic records of accident locations, injury types, and environmental conditions.  Section 409 of the Act protects states from tort liability created by the increased self-reporting of hazardous collision data and provides that reports or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites “shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed” in such reports or data.  The WSP argued that its police traffic collision reports fell under § 409 protection because it provided and WSDOT collected the data for the purposes of identifying and correcting high-collision locations. 

The court disagreed with the WSP, relying heavily upon Pierce County v. Guillen, 537 U.S. 129 (2003), a previous U.S. Supreme Court case reviewing the application of § 409 to Washington’s Public Records Act.  Guillen held that § 409 was inapplicable to information compiled or collected for purposes unrelated to identifying locations and priorities for improvements on the basis of crash experience pursuant to federal law.  The WSP is required to prepare accident reports on state highways under RCW 46.52.060, which the court considered an independent statutory obligation.  Because the WSP did not prepare or use the reports for Federal Highway Safety Act purposes, the protection offered by § 409 did not extend to the WSP by virtue of the fact that it designated WSDOT as its records custodian.  Therefore, the court concluded that while WSDOT was protected by § 409, the WSP was not because it prepared the accident reports for ordinary law enforcement purposes and not for purposes of complying with the Federal Highway Safety Act.

This case should have limited application to municipalities.  First, § 409 does not exempt accident reports from disclosure completely, but only provides that the reports or data cannot be admitted as evidence in a subsequent lawsuit for damages.  Section 409 is not a basis for withholding or redacting documents pursuant to a public records request; the WSP only tried to require the requestor to certify that he would not use the documents in a subsequent lawsuit prior to disclosure.  Second, there should be very limited circumstances in which a municipality is generating or compiling accident reports for Federal Highway Safety Act purposes.  If the reports or data are compiled or collected for unrelated purposes and are held by agencies that are not pursuing Federal Highway Safety Act purposes, § 409 protection will not apply at all.  Simply forwarding accident reports to WSDOT will not protect the documents in a subsequent proceeding.

The case is available here.

Teamsters Local 763 v. City of Mukilteo – Status Quo

November 19, 2010

This office was recently successful in overturning a trial court decision finding that the City had committed an unfair labor practice by failing to maintain the status quo after the expiration of a collective bargaining agreement.  When a collective bargaining agreement expires, an employer is required to maintain the terms and conditions of employment that existed when the agreement expired while negotiating a new agreement.  In this particular case, the City had agreed to pay health insurance premiums.  The City’s contribution increases were limited to a maximum increase of 11% above the 2001 rates in 2002, 10% above the 2002 rates in 2003, and 10% above the 2003 rates in 2004.  When the contract expired in 2005, the City continued to pay the same dollar amount it paid in 2004.  The Court of Appeals concluded that the City was only required to pay the fixed dollar amount it paid in 2004 during the contract negotiations, distinguishing between other cases of “dynamic status quo.”  For example, in previous PERC cases in which the employer was contractually obligated to pay 100% of the health insurance premiums, the Commission held that the employer would have to continue to pay 100% during the period of contract negotiations and committed an unfair labor practice by continuing to pay the same dollar amount previously paid.  However, because the City’s contribution each year was tied to the dollar amount paid in the first year of the contract, the City’s contribution was a fixed rate rather than a dynamic rate.  If you have any questions about status quo and dynamic status quo, please contact your city attorney.

Court of Appeals issues decision in Kitsap County Prosecuting Attorneys Guild v. Kitsap County

May 17, 2010

By Charles D. Zimmerman & Julie K. Norton

On May 11, 2010, the Division II Court of Appeals issued a decision in Kitsap County Prosecuting Attorneys Guild v. Kitsap County, No. 39196-1-II, confirming that an award of attorneys fees, costs, and penalties under the Public Records Act (“Act”) is mandatory if a court determines that the government agency wrongfully withholds or fails to disclose public records.

 In Kitsap County, the Kitsap Sun (the “Sun”) filed a public records request on July 21, 2008 with Kitsap County (the “County”) requesting a database of County employees containing the employees’ names, number of years of employment with the County, department assigned to within the County, job title, office phone number, annual pay rate, and town of residence.  On July 25, 2008, the County sent the Sun a “five day letter” acknowledging that it received the Sun’s request. The County stated that “[a]ll documents responsive to this request will be reviewed and prepared for release.  We hope to release these documents no later than  August 8, 2008.”  

On August 8, 2008, the County released all of the requested information except for the employees’ towns of residence.  At the time of release, the County has still not determined whether the employees’ towns of  residence were exempt from disclosure.  In a letter to the Sun, the County stated in part:

 Under the [PRA], residential addresses of public employees and volunteers are exempt from inspection and copying.  See RCW 42.56.250.  It is not clear to the County whether “town of residence” is included within the meaning of “residential  address.”

 The County is taking action to determine whether County employees object to the public release of their “town of residence”.  If employees consider the release of their town of residence to be a violation of the [PRA] or an invasion of privacy then the County may file a declaratory judgment action and ask the court to rule whether employees’ “town of residence” is exempt from public disclosure.


LUPA – Failure to Timely Appeal Permits Not Subject to Public Notice

December 21, 2009

LAND USE  – FAILURE TO TIMELY APPEAL PERMITS NOT SUBJECT TO PUBLIC NOTICE.  Courts cannot entertain appeals of land use decisions unless the appellant has exhausted all administrative appeals first.  Exhaustion includes the timely filing of administrative appeals, even if the appellant is not required to receive notice of the land use decision.  Nickum v. Bainbridge Island, ___ Wn. App. _____, Slip Op. 38217-2.

 I.          Facts.  Verizon acquired a building permit from Bainbridge Island to construct an equipment shed and utility pole for some communications antenna.  Bainbridge Island issued a building permit and determined the project to be exempt from the State Environmental Policy Act (“SEPA”) on September 14, 2007.  The Nickums owned property adjacent to the project.  They received no notice of the building permit or SEPA exemption decisions and no notice was required.  The Nickums filed an appeal of the decisions to the Bainbridge Island Hearing Examiner on November 8, 2007, about nine days after they first learned of the permits.  The Hearing Examiner dismissed the appeal as untimely, noting that Bainbridge Island regulations impose a 14 day appeal deadline from the date of permit issuance.  The Nickums filed a judicial appeal under the Land Use Petition Act , Chapter 36.70C RCW (“LUPA”), 19 days after issuance of the Examiner’s decision. 

 II.        Applicable Law and Analysis.  Under the doctrine of exhaustion of administrative remedies, LUPA appellants must exhaust all available administrative appeals prior to seeking judicial relief.  This requirement includes complying with administrative time-of-filing requirements.  The Nickums argued that it was not practically possible for them to timely file an administrative appeal of those decisions because they didn’t know they had been issued.  The Court of Appeals determined that it could not toll (extend) the administrative appeals period because Bainbridge Island had not necessitated an extension due to bad faith, deception or false assurances. 

 The Nickums asserted that requiring a timely appeal for permits without notice violated their due process rights (constitutional fairness).  The Court of Appeals determined that they could not consider this argument because the Nickums’ LUPA action was filed too late and LUPA is the judicial mechanism to consider due process claims.   LUPA requires an appeal to be filed within 21 days of the issuance of a final decision.  The Court of Appeals determined that the Hearing Examiner decision was not the final decision because it was based upon an untimely administrative appeal.  Consequently the final decision was the issuance of the building permit and SEPA exemption decision, which were issued much more than 21 days prior to the LUPA appeal. 

 III.       Conclusion.   Even when aggrieved parties receive no notice of a decision, they are still expected under this decision to file timely administrative and judicial appeals if they want to be heard.  The greatest impact will be with building permit decisions, where notice is rarely required for surrounding property owners.

Reconsideration Does Toll LUPA’s 21 Day Appeal Period

December 16, 2009

LAND USE PETITION ACT (LUPA)—“FINAL DETERMINATION”—MOTION FOR RECONSIDERATION.  A motion for reconsideration of a land use decision made by a jurisdiction’s body or officer with the highest level of authority does not toll LUPA’s strict 21-day superior court appeal filing deadline. RCW 36.70C.040(2), (3).  Mellish v Frog Mountain Pet Care, et al, Slip Op. No. 37583-4-II (December 15, 2009).

I.          Issue and Facts.   In Mellish, the court considered whether a county hearing examiner’s decision approving a conditional use permit and minor variance, required for a proposed remodel and expansion of a dog and cat boarding facility, was a “final determination” under LUPA’s definition of a “land use decision.” If so, the decision triggered the running of LUPA’s 21-day appeal period, even though a motion for reconsideration was pending. Mellish, a project opponent, filed a motion for reconsideration. The hearing examiner issued a decision denying the motion for reconsideration and the county issued a permit to Frog Mountain. Mellish then filed a LUPA petition within 21 days of the denial of the motion for reconsideration, but more than 21 days after the hearing examiner’s decision approving the permit and variance. Mellish and the County argued that the 21-day appeal period did not begin to run until the decision denying the motion for reconsideration was made by the hearing examiner. The superior court agreed with Mellish that the motion for reconsideration tolled the 21-day LUPA appeal period and then reversed the examiner’s decision on the merits. Frog Mountain appealed on the basis that Mellish did not file his petition within 21 days of the hearing examiner’s decision. Division II of the Court of Appeals agreed with Frog Mountain and reversed the superior court with instructions that the superior court dismiss the LUPA appeal with prejudice.

II.        Applicable Law and Analysis.  The appeals court first determined that the hearing examiner issued a final decision under former RCW 36.70C.020(1)(a) when he approved the conditional use permit and variance and that an appeal was required within 21 days. RCW 36.70C.040(2). Since the hearing examiner was the county’s highest level of decision making authority on the conditional use permit and variance, the decision was a final determination. The county was not free to define a “final determination” in its local code  because LUPA requires uniformity in expedited appeal procedures. RCW 36.70C.010 and Samuel’s Furniture, Inc. v. Dep’t of Ecology, 147 Wn.2d 440, 452, 54 P.3d 1194 (2002). The appeals court rejected arguments that the motion for reconsideration was itself an appeal to a higher authority and that the decision was not final until the hearing examiner decided the motion to reconsider.

            Having determined the decision of the hearing examiner on the merits of the application to be a final decision, the court of appeals then held that a motion for reconsideration of a LUPA final decision does not toll the filing deadline. Compelling to the court was the absence of any provision in LUPA, as found in other statutes, expressly providing that a reconsideration motion either renders an otherwise final decision non-final or tolls the deadline for filing an appeal. The court pointed to other contexts where the legislature, desiring to alter the effect of unambiguous statutory provisions, such as by tolling a statute of limitations, “has done so expressly.” LUPA contains no similar tolling provision for motions for reconsideration. Finally, the appeals court reviewed the doctrine of equitable tolling and determined that none of the predicates for equitable tolling were demonstrated. The predicates for equitable tolling are bad faith, deception, or false assurances by the other party and the exercise of diligence by the party asserting that equitable tolling should apply.

III.       Conclusion.  This decision addresses an issue of first impression for the appellate courts of this state. Although the decision is deeply-rooted in statutory language and case law expressing that LUPA was intended to provide consistency, uniformity and expedited appeal procedures, another division of the court of appeals could decide differently. Cities should exercise caution and consult their city attorney when considering whether or not to adopt code language that allows for reconsideration of a land use decision made by a highest level decision maker, or when determining the effect of such a motion on the running of the 21-day LUPA appeal period if your city’s code already allows for a reconsideration motion. In January of 2010, the State Supreme Court will hear oral argument in the case of Skinner v. Civil Serv. Comm’n of City of Medina, 146 Wn. App. 171, 173, 188 P.3d 550 (2008). The state’s highest court accepted review of an appeal brought by the City of Medina challenging a Division One decision holding that a motion for reconsideration of a civil service commission’s decision denying an appeal of a disciplinary decision tolled the 30-day statute of limitations in RCW 41.12.090. Although a different statutory context, the decision reached by the State Supreme Court in Skinner may provide a clearer picture as to the impact and lasting effect of the decision by Division II in Mellish v. Frog Mountain, et al.

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