ACHEN v. CLARK CTY., 26886-8-II (Wash.App. 7-2-2002)

No. 26886-8-IIThe Court of Appeals of Washington, Division Two.
Filed: July 2, 2002 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Clark County, No. 98-2-01641-1, Hon. Barbara D. Johnson, December 14, 2000, Judgment or order under review.

Counsel for Appellant(s), Mark A. Erikson, Mark A. Erikson Pllc, 1111 Main St. Ste 402, Vancouver, WA 98660-2958.

Benjamin L. Wolff, Mark A. Erickson Pllc, 1110 S.E. 98th Ave, Vancouver, WA 98664.

Counsel for Respondent(s), Christopher Horne, Clark Co Deputy Pros Atty, 1013 Franklin, P.O.BOX 5000, Vancouver, WA 98642.

BRIDGEWATER, J.

Michael and Catherine Achen (the Achens) appeal a superior court order dismissing several of their takings-related claims against Clark County (the County). The County cross-appeals. We reverse, holding that the Achens’ substantive due process claim is not subsumed by their takings claim; consequently, the revived due process claim independently supports the Achens’ sec. 1983 claim. We affirm the remainder of the holdings of the superior court with regard to both the appeal and the cross appeal, except for the equal protection claim, which we remand for the superior court’s determination.

The Achens are experienced land developers. In November 1993, they purchased 145 acres of land in the City of Battle Ground, Washington. Under then-existing zoning regulations, the land could be subdivided into five-acre parcels. The Achens hoped to subdivide the land using on-site septic systems to treat sanitary waste.

The local health district, here, Southwest Washington Health District (SWWHD), issues permits for on-site septic systems. A 1993 SWWHD memorandum provided that: `ALL proposed lots, including newly created lots with existing sewage or water systems, shall have a current approved site evaluation or valid permit, prior to final plat approval.’ Clerk’s Papers (CP) at 216. (A 1995 SWWHD memorandum provided that each proposed lot must have a permit before preliminary plat approval.) To receive a permit for an on-site septic system, a parcel must meet certain minimum standards, including standards relating to soil. The Achens hired an engineer to assist them in obtaining SWWHD permits.

In March 1994, the Achens received evaluations of their 23 proposed locations for on-site sewage systems from SWWHD; the health district approved 7 and denied 16. The Achens had extensive testing performed to obtain approval for additional sewage systems.

In July 1994, the Achens filed an application to subdivide 95 acres into 19 five-acre lots. In November 1994, the Achens were told that their application was technically complete.

In December 1994, the County adopted its 20-Year Comprehensive Growth Management Plan, which redesignated the subject property from `Rural Estate’ (RE) to `Agriculture 20′ (AG). The AG zoning required a minimum of 20 acres for each residential lot. Former Clark County Code (CCC) sec. 18.306.060.

The County evaluated the Achens’ subdivision application under the State Environmental Policy Act (SEPA), chapter 43.21C RCW, and issued a Mitigated Determination of Nonsignificance (MDNS). As a condition of approval, the MDNS required that: `All lots shall have approved sewage disposal sites . . . prior to preliminary plat approval.’ CP at 238. Meanwhile, the Achens continued to seek additional sewage system permits from SWWHD.

In December 1995, the County’s planning director informed the Achens that they would have until February 1996 to submit additional sewage permits. After the Achens received several extensions, the County reaffirmed that it would eliminate any proposed lots without sewage system permits.

In May 1996, the County issued a staff report, approving the Achens’ application to subdivide their 95 acres into a maximum of 14 lots. The County’s sole reason for eliminating five of the proposed lots was the Achens’ failure to obtain a sufficient number of sewage system permits. Preliminary plat approvals must be appealed within 15 days. See former CCC 17.302.070 (repealed in 1995). Similarly, SEPA procedural determinations are also subject to judicial review. CCC sec. 20.50.030(1)(b)(ii); CCC sec. 20.50.030(2)(iii). The Achens appealed neither the County’s conditional approval (i.e., the staff report) nor the MDNS. According to the County, the decision on the Achens’ subdivision became final on May 18, 1996 15 days after the staff report was issued.

In May 1998, the Achens filed their complaint, setting forth eight causes of action: (1) violation of procedural due process, (2) violation of substantive due process, (3) violation of equal protection, (4) illegal spot zoning, (5) temporary taking, (6) negligence — breach of special relationship, (7) wrongful interference with business expectancy, and (8) damages and attorney fees under 42 U.S.C. § 1983, 1988. The Achens’ amended complaint added a ninth cause of action for `INVERSE CONDEMNATION — TAKING’ under RCW 8.08.010. CP at 90. The County filed its answer in June 1998, asserting RCW 4.96.010 as an affirmative defense.

In April 2000, the County moved for partial summary judgment, arguing that the Achens’ federal claims were not ripe. In May 2000, the County moved for partial summary judgment on the Achens’ spot zoning and tort claims. Also in April, the Achens moved for partial summary judgment on their equal protection and due process claims.

In August 2000, the superior court entered an order denying the Achens’ motion and granting the County’s motions, in part. The superior court:

(1) concluded that all of the Achens’ claims were based on a takings theory;

(2) dismissed the negligence and business expectancy claims;

(3) dismissed the procedural due process claim, finding `that there is no material issue of fact regarding the procedure and that the procedure did provide [the Achens] a notice and opportunity to be heard sufficient to meet constitutional requirements,’ CP at 908-09;

(4) dismissed the substantive due process claim, holding that it was `subsumed within the Fifth Amendment takings claim’, CP 909;

(5) dismissed the §§ 1983-1988 claim, reasoning that it was `addressing a takings under state law in both the [temporary taking] and [inverse condemnation claims, which] must be resolved before the federal claims are properly before the Court[;] those claims are not ripe for that reason’, CP 909; and

(6) reserved the illegal spot zoning and equal protection claims for trial.

In December 2000, the superior court granted the Achens’ November 2000 motion for entry of judgment.

I. Standard of Review.
We review summary judgment de novo, engaging in the same inquiry as the trial court, Int’l Broth. of Elec. Workers, Local Union No. 46 v. TRIG Elec. Contr. Co., 142 Wn.2d 431, 434-35, 13 P.3d 622 (2000), cert. denied, 532 U.S. 1002 (2001), and may affirm on any basis the record supports. Redding v. Virginia Mason Med. Ctr., 75 Wn. App. 424, 426, 878 P.2d 483 (1994). Summary judgment is appropriate only if there is no issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). A material fact `is of such a nature that it affects the outcome of the litigation.’ Ruff v. County of King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995).

We must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). ‘[W]hen reasonable minds could reach but one conclusion from the evidence presented, questions of fact may be determined as a matter of law, and summary judgment is appropriate.’ Cent. Wash. Bank v. Mendelson-Zeller, Inc., 113 Wn.2d 346, 353, 779 P.2d 697 (1989).

II. Due Process not subsumed under Takings
The superior court dismissed the Achens’ substantive due process claim, concluding `that under the facts of this case [it] is subsumed within the Fifth Amendment takings claim[,] which is the primary claim at issue.’ CP at 909. The Achens assign error to this conclusion. The due process claim in the Achens’ complaint alleged arbitrary and capricious action by the County; the takings claim alleged a temporary taking from the time of the approval of the subdivision on May 3, 1996, until application of the correct criteria to approve all residential lots. Also in the complaint, the Achens ask for two different remedies: (1) approval of all 19 proposed lots and rezoning of their property as `RE’ with a five acre minimum lot size; and (2) money damages for both the due process claim and the takings of residential lots. Substantive due process, guaranteed by the Fifth and Fourteenth Amendments,[1] `prevents the government from engaging in conduct that `shocks the conscience,’ or interferes with rights `implicit in the concept of ordered liberty.”[2]
Article I, sections 3 (due process) and 12 (privileges and immunities) of the Washington State Constitution provide similar protection. See State v. Pitney, 79 Wn. 608, 610, 140 P. 918 (1914) (`The provisions of the Federal and state constitutions relative to . . . due process of law are substantially the same.’).

The Takings Clause of the Fifth Amendment provides that private property shall not `be taken for public use, without just compensation.’ U.S. Const. amend. V; Burton v. Clark County, 91 Wn. App. 505, 515, 958 P.2d 343 (1998), review denied, 137 Wn.2d 1015 (1999). It applies to the states through the Due Process Clause of the Fourteenth Amendment.[3]
Our State constitution affords similar protection. See Wash. Const. art. I, sec. 16; Orion Corp. v. State, 109 Wn.2d 621, 657, 747 P.2d 1062
(1987), cert. denied, 486 U.S. 1022 (1988). Whether substantive due process claims are subsumed within Fifth Amendment takings claims is a constitutional issue. We review constitutional challenges de novo. Merseal v. Dep’t of Licensing, 99 Wn. App. 414, 420, 994 P.2d 262, review denied, 141 Wn.2d 1021 (2000). Washington case law supports the Achens’ position that substantive due process claims involving property rights are independent of takings claims. For example, when a land use regulation is challenged as both an unconstitutional taking and a due process violation, Washington courts first analyze the takings issue and then proceed to the due process question.[4] Washington decisions also recognize that takings claims and substantive due process claims provide different remedies respectively, compensation for the taking and invalidation of the offending regulation. Presbytery of Seattle v. King County, 114 Wn.2d 320, 329-32, 787 P.2d 907, cert. denied, 498 U.S. 911
(1990). Here, the Achens have asked for both remedies.

The Ninth Circuit, however, holds that the Fifth Amendment subsumes substantive due process takings claims. See Buckles v. King County, 191 F.3d 1127, 1137 (9th Cir. 1999) (‘[A] plaintiff is precluded from asserting a substantive due process claim instead of, or in addition to, a takings claim.’); Armendariz v. Penman, 75 F.3d 1311 (1996). Washington does not follow the Ninth Circuit. Thus, the superior court erred by granting summary judgment on the Achens’ substantive due process claim to the extent that the Achens’ substantive due process claim relies on arbitrary and capricious state action.

Therefore, we reverse the superior court’s dismissal of the substantive due process claim.

III. Ripeness
After concluding that all of the Achens’ claims were based on a takings theory, the superior court dismissed their sec. 1983 claim:

The [Achens’] eighth cause of action addresses claims based on [sec.] 1983; the Court grants [the County’s] Motion for Summary Judgment . . . on the basis of ripeness. The Court is addressing a takings under state law in both the [temporary taking] and [inverse condemnation claims, which] must be resolved before the federal claims are properly before the Court.

The Court concludes that those claims are not ripe for that reason.

CP at 909 (emphasis added). In effect, the superior court applied ripeness requirements to the Achens’ equal protection and due process claims (i.e., the alleged constitutional violations supporting the sec. 1983 claim). Section 1983 provides a remedy but does not create any substantive rights. Wilson v. Garcia, 471 U.S. 261, 278, 105 S.Ct. 1938, 85 L.Ed.2d 254
(1985). Thus, without a viable constitutional claim, a complaint is not actionable under sec. 1983. Turner v. Johnson, 46 F. Supp.2d 655, 676
(S.D.Tex. 1999).

The Achens argue that the superior court erred by applying ripeness requirements to their equal protection and due process claims. The County argues that the superior court properly ordered dismissal. Ripeness is a question of law the court determines. Herrington v. County of Sonoma, 857 F.2d 567, 568 (9th Cir. 1988), cert. denied, 489 U.S. 1090 (1989). In addition, because sec. 1983 is a federal cause of action, this court is bound by the federal interpretation. Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 652, 935 P.2d 555 (1997).

A takings claim is `ripe’ after the plaintiff receives `a final decision by the government agency that inflicts a concrete harm[.]’[5]
Before a decision is final, `the landowner must have submitted one formal development plan and sought a variance from any regulations barring development in the proposed plan[.]’ Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1232 (9th Cir.), cert. denied, 513 U.S. 870 (1994). The Achens did not seek a variance. Thus, their takings claim is not ripe.

The Ninth Circuit requires a final decision for all `as-applied challenges to regulatory takings, whether based on the just compensation clause, the due process clause or the equal protection clause[.]’ S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 507 (9th Cir. 1990), cert. denied, 502 U.S. 943 (1991). But the Ninth Circuit also recognizes that a procedural due process claim not arising from, or relying on, a takings claim is not subject to ripeness constraints applicable to regulatory takings.[6] Likewise, the Fifth Circuit holds that neither substantive due process claims (at least those not subsumed under the takings clause) nor equal protection claims are subject to ripeness constraints applicable to regulatory takings. John Corp. v. City of Houston, 214 F.3d 573, 585 (5th Cir. 2000).

A. Substantive Due Process
Because we reverse and remand the Achens’ substantive due process claim, and because ripeness is not appropriate for due process claims,[7]
remand of the sec. 1983 claim follows as of course. See Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 21 n. 11, 829 P.2d 765 (Substantive due process claims `ripe[n] immediately . . . because the harm occurs at the time of the violation.’), cert. denied, 506 U.S. 1028 (1992). In short, the Achens’ substantive due process claim is ripe and gives rise to a sec. 1983 claim.

B. Equal Protection
The Achens claim that because the superior court permitted their equal protection claim to go forward, it alone provides a basis for their sec. 1983 claim. The County argues that the superior court allowed the equal protection claim to go forward, but only to the extent it states a claim under state law. The summary judgment order, in relevant part, provides:

`The actions remaining are the causes of action for equal protection[,] . . . illegal spot zoning, [temporary taking] and [inverse condemnation] to the extent those claims state a state claim under state law and statutory authority.’ CP at 909 (emphasis added).

The Achens argue that the order’s `state law’ limitation applies only to their temporary taking and inverse condemnation claims. See In re Sehome Park Care Ctr., Inc., 127 Wn.2d 774, 781, 903 P.2d 443 (1995) (`The last antecedent rule provides that, unless a contrary intention appears in the statute, qualifying words and phrases refer to the last antecedent.’).

They further argue that the order’s language shows a clear intent to reserve the federal equal protection claim for trial. We find the order ambiguous; thus, we decline to make a holding because we are remanding the due process claim for trial.

We have already held that the due process claim forms the basis for a sec. 1983 claim. If the superior court also reserved the Achens’ federal equal protection claim for trial, it, like the substantive due process claim, would support the sec. 1983 claim. We do not look at the merits of the claim, just the court’s order. Because we are remanding the matter for trial on at least one issue regarding a sec. 1983 claim, we leave this to the superior court’s interpretation of its own prior order.

IV. Procedural due process rights
The superior court dismissed the Achens’ procedural due process claim, concluding that: ‘[T]here is no material issue of fact regarding the procedure and that the procedure did provide [the Achens] a notice and opportunity to be heard sufficient to meet constitutional requirements.’ CP at 908-09. The Achens argue that the County deprived them of their procedural due process rights because the regulation at issue is unconstitutionally vague and the County denied them of their statutory right to appeal.

A. Is CCC sec. 17.301.030 unconstitutionally vague?
The void for vagueness doctrine is a “due process concept implementing principles of fair warning and nondiscriminatory enforcement.”[8] In land use regulation, a court looks at the face of the ordinance and its application to the person who allegedly violated it. Burien Bark Supply v. King County, 106 Wn.2d 868, 871, 725 P.2d 994 (1986).

The Achens claim that CCC sec. 17.301.030, the ordinance specifying approval criteria for preliminary plat applications, fails to give notice of what is required and encourages arbitrary and discriminatory enforcement.[9] CCC sec. 17.301.030 provides: `The approval authority shall approve a preliminary plat if he or she finds the applicant has sustained the burden of proving that the application complies with the following approval criteria or that the application can comply with those criteria by complying with conditions of approval[.]’ The approval criteria require that ‘[s]anitary waste collection and treatment’ facilities `are adequate to serve the proposed subdivision before or concurrent with development of the preliminary plat[.]’ CCC sec. 17.301.030(B)(6). The Achens claim, without citation to the record, that the County relied on this language to eliminate five lots from their proposed subdivision. Specifically, the Achens contend that the ordinance is unclear because it does not specify a deadline to obtain a septic system permit. But, as the County points out, this version of CCC sec. 17.301.030 was not in effect when the Achens’ plat application vested in November 1994. Thus, the allegedly vague ordinance was not in effect when the County reviewed the Achens’ proposed subdivision. Consequently, we decline to review this issue.

In their reply brief, the Achens claim that CCC sec. 17.301.030 represents a codification of the County’s policy and practice in effect during the review of their preliminary plat application. Regardless, the County’s alleged policies and practices were not `codified’ when the Achens’ application vested. Thus, there is no allegedly unconstitutional ordinance for this court to review in this case.

B. statutory right to appeal In May 1996, the County’s planning division issued a staff report approving the subdivision of the Achens’ 95-acre parcel into 14 lots, instead of the 19 requested lots. The County approved the 14 lots because, at that time, the Achens only had approval for sewage systems on 14 lots. The County denied the other five lots because under the circumstances, it appeared `unlikely’ that the Achens could ever obtain approval for sewage systems on those lots. CP at 324.

The SWWHD is the government agency that issues permits for on-site sewage systems. Under SWWHD regulations, any aggrieved party may appeal the denial of a permit. See SWWHD Reg. No. 90-01.

The Achens claim that by issuing the staff report, the County denied them their right to appeal to SWWHD (to obtain permits for the remaining five lots), which consequently precluded them from obtaining approval for the 19-lot subdivision. This argument is unpersuasive. The Achens had 15 days to appeal the staff report but failed to do so. Thus, we hold that there was no denial of procedural due process.

V. Cross Appeal
A. Tort Claims The superior court dismissed the Achens’ state law tort claims (i.e., negligence and wrongful interference with business expectancy) without prejudice. The Achens did not appeal the dismissal of their tort claims; instead, they filed a complaint in August 2000 raising the same two claims.

The County claims that the statute of limitations ran; it cross-appeals the dismissal without prejudice and maintains that it should have been with prejudice, thus preventing the new complaint in August 2000.

The Achens contend that the CCC sec. 18.600.110 describes three alternative methods for modification of a decision: (1) appeal, (2) post-decision review, or (3) new application. The Achens realize that the statute of limitations does not run until they have exhausted their administrative remedies. The Achens contend that these are alternative administrative remedies. They claim that they elected post-decision review because they obtained new information. The Achens elected this procedure because it was the correct procedure for modifying an approved or conditionally approved application. See CCC sec. 18.600. The last administrative act was the Board of Commissioners’ affirmation of the hearing examiner’s denial of the Achens’ application for post-decision review signed on October 7, 1997. If the Achens are correct, then the amended complaint was within the three-year statute of limitations because it was filed in August 2000, and they had until October 2000.[10]
The County takes the position that the Achens’ tort claims began to run on May 3, 1996, when it granted preliminary approval because the Achens did not properly file their first claim with the clerk of the board to toll the statute. The County alleges that CCC sec. 18.600.110 does not apply to the Achens because it was not in effect when their application vested. But it was enacted in January 1995. The County refers to vesting as protecting applicants from code changes and states that this doctrine would apply to the Achens; but this ordinance did not change code requirements to their detriment, it was a procedural change defining how to deal with decisions it in essence gave applicants more rights by giving alternatives to department action. It was clearly in effect before preliminary approval was granted, and it was applicable to the Achens.

The County also maintains that, although it is an alternative to an appeal, post-decision relief does not extend the deadline for filing an appeal. CCC sec. 18.600.110(6). This is true, and if the Achens were attempting to proceed by appeal, they would be denied; but they are proceeding under the alternative to appealing (i.e., post-decision review). They are merely using it as a measuring device for establishing when they exhausted their administrative remedies. The Achens are correct, the superior court did not err.

B. Spot Zoning
At summary judgment, the County argued that a `spot zoning’ claim is based in tort, and therefore subject to RCW 4.96.020. (Specifically, the County argued that the Achens did not file their claim with the `governing body’ as RCW 4.96.020(2) required.) The superior court denied summary judgment, concluding that the County did not present conclusive evidence that spot zoning is a tort claim. Chapter 4.96 RCW applies only to claims seeking damages from tortious conduct; it does not apply to `other types of damages such as breach of contract or special statutory remedies.’ Wilson v. City of Seattle, 122 Wn.2d 814, 820, 863 P.2d 1336
(1993). Here, the County renews its argument that a spot zoning claim is a tort subject to chapter 4.96 RCW.[11] The Achens answer that a spot zoning claim sounds in substantive due process and equal protection, not in tort, and thus, is not subject to chapter 4.96 RCW.[12] The Achens’ argument is more persuasive. Our supreme court defined `spot zoning’ as `arbitrary and unreasonable zoning action by which a smaller area is singled out of a larger area or district and specially zoned for a use classification totally different from and inconsistent with the classification of surrounding land, and not in accordance with the comprehensive plan. Spot zoning is a zoning for private gain designed to favor or benefit a particular individual or group and not the welfare of the community as a whole.’ Smith v. Skagit County, 75 Wn.2d 715, 743, 453 P.2d 832 (1969). This definition supports that spot zoning sounds in both due process and equal protection, not in tort.

We affirm the trial court’s holdings on the cross appeal. Reversed in part, affirmed in part, remanded for new trial.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

SEINFELD and QUINN-BRINTNALL, JJ.