No. 49335-3-IThe Court of Appeals of Washington, Division One.
Filed: December 9, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County, No. 99-2-09101-7, Hon. Ronald L. Castleberry, August 6, 2001, Judgment or order under review.
Counsel for Appellant(s), Valerie Bittner, 2611 N.E. 113th St. Ste 300, Seattle, WA 98125.
Marlene Kaplan, Attorney At Law, 5745 Wilson Ave S, Seattle, WA 98118.
Counsel for Respondent(s), Carol A. Morris, Attorney At Law, 321 Bromley Pl NW, Bainbridge Is, WA 98110.
KENNEDY, J.
Toshi and Pilrang Owa filed a Land Use Petition Act (LUPA) petition and complaint for declaratory and injunctive relief and damages in Snohomish County Superior Court. The court dismissed their claims by way of summary judgment. We affirm, but deny the City’s request for attorney fees on appeal, in that the Owas have not appealed the dismissal of their LUPA petition, and their appeal of the dismissal of their constitutional claims, while not successful, is not frivolous.
FACTS
In 1976, Toshi and Pilrang Owa purchased the property located at 10925 Evergreen Way in Everett, now known as Everett Recreational Vehicle (RV) Park. The property, which is approximately one acre in size, was annexed to the City of Everett in 1989 and zoned General Commercial (C-1).
In 1969, long before the Owas established their RV park, the City adopted regulations for the siting and operation of new mobile home parks. These regulations are contained in Everett Municipal Code (EMC) Title 17. Insofar as here relevant, the code contains the following definitions:
EMC 17.08.180: Mobile Home. “Mobile Home” means a vehicle equipped as a dwelling place.
EMC 17.08.190: Dependent or Travel Trailers. “Dependent or travel trailer mobile home” means a mobile home dependent upon toilet and/or bathing or washing facilities provided in a service building.
EMC 17.08.170: Mobile Home Park. “Mobile home park” means any plot of ground upon which one or more mobile homes, occupied for dwelling or sleeping purposes, are located, regardless of whether or not a charge is made for such accommodation.
Title 17 also regulates the physical characteristics of a mobile home park. It must have at least three acres of land, with direct access to a public street right-of-way containing a width of at least 50 feet. EMC 17.20.040. All mobile homes in a mobile home park must be connected to sewer and water. EMC 17.12.040; 17.32.010. There are minimum side-yard distances for individual mobile home lots, as well as minimum yard distance and setback requirements for the entire park. EMC 17.24.050; 17.24.060. There are also specific landscaping and parking space requirements. EMC 17.28.010; 17.28.040; 17.28.060.
The code limits use and occupation of `mobile homes’ outside of a “mobile home park”:
EMC 17.12.120: Temporary uses of mobile homes. Except as provided in Chapter 19.10 of this code, it is unlawful for any person to occupy or use any mobile home or trailer in the city, except within a mobile home park, provided however, that the same may be parked and used outside of the mobile home park for a period not to exceed forty-eight hours continuous time for sleeping and housekeeping purposes.
In 1996, the Owas submitted a “special use permit” application to the City for operation of a 12-space RV park on their property. The City defines a “special property use” as “a use which by its unique nature or scale has qualities or impacts cannot be classified into a particular zone and must be given careful consideration before the city allows the establishment of such a use.” EMC 19.41.150. The City evaluted the Owas’ application as a special property use under Review Process II. EMC 19.41.150(b)(1). On June 26, 1996, the City approved the special use permit (SPU II #1-96) with a number of conditions, mostly addressing matters such as landscaping, electrical and fire safety, stormwater runoff, and paved driveway and parking areas. Condition 16 specified: “Stays are limited to a maximum of 48 hours.” Clerk’s Papers at 333. The permit clearly stated that it was appealable:
This is an administrative decision that is appealable to the City’s Land Use Hearing Examiner. An appeal must be filed with the City within 14 calendar days of the date of this notice. Appeal forms are available from the Planning Department and must be submitted along with the required filing fee. If you have questions regarding this proposal or if you wish to file an appeal, please contact Steve Ingalsbe, City of Everett Planning Department, at 259-8731.
Clerk’s Papers at 336. The Owas did not appeal the 1996 permit.
The Owas began to implement some of the physical improvements required by the 1996 permit. On April 21, 1997, the City issued a Certificate of Occupancy following issuance of construction, electrical, and infrastructure-related permits. Soon thereafter, the Owas leased an acre of land south of their current RV park. The lease gave them an option to purchase the leased property on July 31, 2003. After receiving the certificate of occupancy, the Owas advertised the availability of space in their RV park. For two months they did not have a single customer. No one was willing to stay for only 48 hours. Eventually, they attracted a few customers, but the customers were reluctant to leave after two days. On August 25, 1998, more than two years after obtaining the permit, the Owas wrote a letter to City Planning Commissioner Alan Giffen, asking the City to revise its code to allow stays in RV parks of six to twelve months. On October 7, 1998, the Owas’ letter was answered by Robert Landles, Manager of the Land Use Division of the City’s Planning and Community Development Department. He explained the basis for the 48-hour rule:
The City regulations related to the use of mobile homes and trailers are contained in Title 17 of the Everett Municipal Code. . . . Temporary uses of mobile homes or trailers [are] currently limited to 48 hours. We can, under the current ordinance, allow RV parks meeting all mobile home park standards, to provide extended residence times.
Clerk’s Papers at 338. Although Landles did not cite a specific section of EMC Title 17, a review of that title indicates that he must have been referring to EMC 17.12.120. Landles also suggested the following remedy:
If you wish to relocate to a parcel meeting the mobile home park standards, please contact [our] office for specific code requirements and procedures to establish this use. At this time the City does not feel that it would be appropriate to allow longer term tenancy on lots not meeting all mobile home park standards.
Id.
On November 19, 1998, the Owas applied for a permit to expand their RV park. They sought to provide ’36 units of low-income RV spaces’, accommodating approximately 60 to 70 people. In response to the Owas’ expansion application, the City performed two field inspections to determine whether the Everett RV Park was in compliance with the conditions of the 1996 permit and applicable code criteria. These inspections revealed that several of the permit conditions had not been fulfilled. Instead of 12 occupied RV/campers on the property, there were 19. There also were abandoned vehicles, junk, and unscreened refuse on the property.
The Owas had failed to install a concrete driveway, provide for screened refuse, install the required landscaping, or provide a fire hydrant or fire department turn-around. Electricity to some of the campers and RVs was being provided through extension cords running along the ground. And many RVs on the property were functioning as long-term residences, in violation of Condition 16 of the special use permit, the 48-hour limit.
Because of these problems, the City wrote a letter to Toshi Owa on April 29, 1999, informing him of its determination that the current use of the property was inconsistent with the previously approved 1996 permit, and not permitted in the C-1 zone. Consequently, the City refused to review the Owas’ expansion application, and ordered the current use terminated. The letter also stated:
To allow long term stays, you must submit an application for a Mobil[e] Home Park, and comply with Section 17.20.040 which requires that a Mobil[e] Home Park: “Shall contain at least three acres of land with direct access to a public street right-of-way containing a width of at least 50 feet.”
Clerk’s Papers at 151.
On May 13, 1999, the Owas appealed the City’s refusal to review the Everett RV Park expansion application. On June 1, 1999, the City issued a violation citation to the Owas. On June 8, 1999, the City asked that both the violation citation and the expansion application appeals be heard in a combined hearing.
On August 5, 1999, the parties presented arguments to the hearing examiner at two separate hearings. The first hearing dealt solely with the City’s code enforcement action against the Owas. The second hearing addressed two issues: (1) whether the use of the property as an RV park was an established nonconforming use, and (2) whether the City erroneously refused to process the Owas’ expansion permit application.
On August 20, 1999, the hearing examiner determined that the Everett RV Park was not in compliance with the conditions of the 1996 permit. Accordingly, the examiner upheld the violation citation and ordered the Owas to immediately bring the park into compliance. On October 15, 1999, the hearing examiner determined that the current use was not a legal nonconforming use, and that the City had failed to follow the proper procedures in refusing to review the Owas’ expansion application. The application was remanded to the City for further review.
On October 29, 1999, the City filed a motion for reconsideration/clarification of the October 15, 1999 decision regarding the City’s failure to process the expansion application. On November 5, 1999, the Owas submitted additional pleadings in response to the City’s motion for reconsideration, alleging various constitutional claims and other errors of law. On November 29, 1999, the hearing examiner upheld both the August 20, 1999 code enforcement decision and the October 15, 1999 decision regarding legal nonconforming use and the City’s failure to process the expansion application. The hearing examiner explained why the City could not properly refuse to process an application simply by taking no action, despite the Owas’ failure to comply with the conditions of the 1996 permit:
Had the City provided a written explanation to Owa that it could not process the application for the SPU Permit expansion until the conditions of the original Special Property Use Permit had been satisfied, the requirements of RCW 36.70 would have been satisfied. . . .
The City is not obligated to review the application for expansion of the SPU Permit until Mr. Owa complies with the August 20, 1999, decision and the conditions of SPU II #1-96. However, in refusing to consider the application for the SPU Permit expansion, the City is obligated and mandated by RCW 36.70 to inform Mr. Owa of why the application for the SPU Permit expansion is not being processed.
Clerk’s Papers at 609-10. The hearing examiner also found that there was nothing in the Owas’ additional pleadings to justify changing the original decisions.
On December 20, 1999, the Owas filed a LUPA petition and complaint in Snohomish County Superior Court, which they subsequently amended four times. The fourth amended land use petition and complaint contained six causes of action: (1) a LUPA petition requesting review of the City’s “refusal to permit a variance’ as sanctioned in the hearing examiner’s decisions; (2) a request for declaratory judgment regarding application of EMC 17.12.120 to the Owas’ RV park; (3) illegality of contract term; (4) violation of constitutional rights, including substantive due process, equal protection, and regulatory taking arising from the “interpretation, promulgation and enforcement” of EMC 17.12.120 and Condition 16; (5) damages and attorney fees pursuant to RCW 64.40.020 and 42 U.S.C. § 1983; and (6) injunctive relief.
On December 21, 1999, in accordance with the hearing examiner’s decision, the City issued a Determination of Incomplete Application, informing the Owas that their application could not be processed until they demonstrate full compliance with the 1996 permit conditions.
The Owas moved to obtain additional discovery on their LUPA claims and to supplement the administrative record, but these motions were denied. The City then filed a motion to dismiss the Owas’ LUPA claims, pointing out that the Owas had failed to appeal the 1996 permit, and had never asked for a variance. In response, the Owas filed a motion for a continuance with supporting declarations.[1] The trial court denied the Owas’ motion for a continuance, and granted the City’s motion to dismiss the LUPA claims with prejudice. The City then filed a motion for summary judgment to dismiss all remaining claims in the fourth amended land use petition and complaint.
The Owas filed a memorandum in opposition to the City’s motion for summary judgment, and the City filed a reply. On August 6, 2001, the trial court granted the City’s motion for summary judgment and dismissed all of the Owas’ remaining claims. The trial court subsequently denied the Owas’ motion for reconsideration of that decision. On August 28, 2001, the City formally denied the Owas’ application to expand the RV park. The decision specified that the Owas were not prohibited from submitting a revised application that does not include a request for removal of the 48-hour limit required by EMC 17.12.120 from the existing special use permit or in the request for an expansion permit. The Owas now appeal.
DISCUSSION
A trial court’s grant of summary judgment is reviewed de novo by the appellate court. Green v. A.P.C., 136 Wn.2d 87, 94, 960 P.2d 912 (1998). Summary judgment is appropriate if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. CR 56(c). “The burden of showing that there is no issue of material fact falls upon the party moving for summary judgment; all reasonable inferences must be resolved against the moving party, and the motion should be granted only if reasonable people could reach but one conclusion.” Hash v. Children’s Orthopedic Hosp. Med. Ctr., 110 Wn.2d 912, 915, 757 P.2d 507 (1988).
If the moving party is a defendant and meets this initial showing, then the inquiry shifts to the party with the burden of proof at trial, the plaintiff. If, at this point, the plaintiff “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial,” then the trial court should grant the motion.
Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182
(1989), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
As a preliminary matter, we note that some of the issues raised below were abandoned in the trial court. Others have been abandoned on appeal because they are not argued. And some issues that the Owas argue on appeal were not preserved for review because they were not raised in the trial court. First, the Owas implicitly abandoned their LUPA claims in the trial court by failing to respond on the merits to the City’s motion to dismiss those claims. Moreover, they have neither assigned error to the dismissal of their LUPA petition in this appeal, nor raised and argued any issues in that regard. Second, the Owas expressly abandoned their claim below for illegality of contract term. Third, the Owas’ briefs on appeal make no mention of damages under RCW 64.40.020. Fourth, the Owas never appealed the hearing examiner’s finding that the Everett RV park was not a nonconforming use. Fifth, the Owas cannot argue for the first time on appeal that the City’s refusal to process their application was arbitrary and capricious or violated substantive due process or equal protection.
They are similarly barred from arguing for the first time on appeal that EMC 17.12.120 is void for vagueness. See generally, RAP 2.5(a) State v. Riley, 121 Wn.2d 22, 30, 846 P.2d 1365 (1993).
We now address the claims that were properly raised and preserved for appeal. Declaratory Judgment:
The first issue is whether the trial court erred in dismissing the Owas’ complaint for declaratory relief. The City contends that declaratory relief is not appropriate in this “as-applied” challenge, and we agree. A declaratory judgment is used to determine questions of construction or validity of a statute or ordinance. RCW 7.24.020. “It is the proper form of action to determine the facial validity of an enactment, as distinguished from its application or administration.” City of Federal Way v. King County, 62 Wn. App. 530, 535, 815 P.2d 790 (1991).
“[W]here a plaintiff has a `completely adequate remedy available’ apart from the declaratory judgment requested, such a plaintiff `is not entitled to relief by way of a declaratory judgment.'” King County v. Boeing Co., 18 Wn. App. 595, 602, 570 P.2d 713 (1977), quoting Reeder v. King County, 57 Wn.2d 563, 564, 358 P.2d 810 (1961). The Owas’ fourth amended complaint alleges that they are entitled to relief under the Declaratory Judgment Act because of the City’s “erroneous interpretation, promulgation, and enforcement of Section 17.12.120 of the Everett Municipal Code as applied to Petitioner’s property which is, instead, controlled by the provisions of Title 19 of the Everett Municipal Code.” Clerk’s Papers at 594 (emphasis added). They do not argue that EMC 17.12.120 is categorically invalid. This is an as-applied challenge, and declaratory relief is not appropriate.
Regulatory Taking: Next, the Owas argue that application of EMC 17.12.120 and Condition 16 to the Everett RV Park is a regulatory taking.[2] This appears to be an as-applied challenge, although the Owas’ arguments on appeal also touch upon elements of a categorical or per se taking. It is unnecessary to exhaust administrative remedies in a facial challenge, because the allegation is that application of the regulation to any property is a taking. Presbytery of Seattle v. King County, 114 Wn.2d 320, 333, 787 P.2d 907 (1990). However, “[a] regulatory taking claim is not ripe until ‘the initial government decision maker has arrived at a definite position, conclusively determining whether the property owner was denied all reasonable beneficial use of its property.'” Guimont v. City of Seattle, 77 Wn. App. 74, 85, 896 P.2d 70 (1995) (Guimont II), quoting Orion Corp. v. State, 109 Wn.2d 621, 632, 747 P.2d 1062
(1987). This is because a regulatory taking claim requires the court to compare the present value of the regulated property against the value of the property before imposition of the regulation, thereby determining whether the regulation has diminished the economic uses of the land to the extent that an unconstitutional taking has occurred. Ventures Northwest Ltd. P’ship v. State, 81 Wn. App. 353, 368, 914 P.2d 1180
(1996). Put another way, Without knowledge of the uses to which this property can legally be put, it is not feasible to consider the factors which help to determine “undue oppressiveness”. Exhaustion of administrative remedies is, therefore, necessary in order for a court to have before it the facts necessary to make such a determination.
Presbytery, 114 Wn.2d at 337. The landowner has the substantial burden of showing that futility excuses the exhaustion requirement. Id. at 338.
The City argues that the Owas failed to exhaust administrative remedies by failing to timely file an administrative or judicial appeal to the 1996 permit. But the Owas’ failure to appeal the 1996 permit has no bearing on their ability to advance constitutional claims at this juncture. It is true that they failed to request a variance; we agree with the City that the Owas’ letter asking the City to revise its code does not qualify as such a request. However, such a request would likely have been futile, given that the City admits it does not grant use variances, and given that the City informed the Owas by letter that they would have to have a three-acre parcel in order to qualify for a mobile home park permit. The Owas do not have three acres. They own one acre and lease an adjoining acre with an option to purchase.
The real problem is that the Owas have not shown that the imposition of EMC 17.12.120 and Condition 16 has denied them all reasonable economic use of the property. Although the Owas have shown that the 48-hour limit will have a severe impact on the profitability of the property if it is used as an RV park, there likely are other reasonable economic uses for the property that would be completely unaffected by Condition 16 or EMC 17.12.120. The Everett RV park is located in a C-1 commercial zone; thus, the land presumably has many uses other than an RV park. Therefore, the Owas’ as-applied taking claim is not ripe. However, because the Owas have also advanced categorical taking arguments in their briefs, we continue the analysis.
A land use regulation may be challenged as both an unconstitutional taking and a violation of substantive due process, but the court will evaluate each claim independently, with the taking claim analyzed first Guimont II, 77 Wn. App. at 80. If the regulation survives the taking analysis, the court then determines if it violates substantive due process. Presbytery, 114 Wn.2d at 330.
The first threshold question is whether the regulation constitutes a per se or categorical taking. Guimont v. Clarke, 121 Wn.2d 586, 594, 854 P.2d 1 (1993) (Guimont I); Manufactured Housing Communities of Washington v. State, 142 Wn.2d 347, 13 P.3d 183 (2000). A police power measure is subject to a categorical taking challenge where the regulation (1) effects a “total taking” of all economically viable use of property; (2) results in an actual physical invasion on the property; (3) destroys a fundamental attribute of ownership (such as the right to possess, exclude others, or dispose of property); or (4) was employed to enhance the value of publicly held property. Manufactured Housing, 142 Wn.2d at 355. If the property owner can establish a categorical taking and the government cannot rebut the claim, no further analysis is required and the owner is entitled to just compensation. Guimont II, 77 Wn. App. at 81. Here, the Owas argue that Condition 16 and EMC 17.12.120 destroy a fundamental attribute of ownership, the right to exclude, by forcing them to exclude RV customers after 48 hours. But the 48-hour requirement does not really affect the right to exclude; the Owas can still allow whomever they wish to enter the park, and are free to exclude a potential customer for any lawful reason. The regulation merely sets limits on how long customers may park and use their RVs for sleeping and housekeeping purposes outside a mobile home park. In addition, there is no evidence that the regulation amounts to a total taking, creates a physical invasion, was employed to enhance the value of publicly held property, or destroys any of the other fundamental attributes of ownership. If the property owner cannot meet the criteria for a per se or categorical taking, the court proceeds to the second threshold inquiry, also known as the benefit/burden analysis: `whether the challenged regulation merely protects the public interest in health, safety, the environment or the fiscal integrity of an area, or whether the regulation `seeks less to prevent a harm than to impose on those regulated the requirement of providing an affirmative public benefit.” Margola Assocs. v. City of Seattle, 121 Wn.2d 625, 645, 854 P.2d 23 (1993), quotin Guimont I, 121 Wn.2d at 603. If the regulation merely safeguards the public health, safety, and welfare, then no taking occurs, and the court proceeds with its substantive due process analysis (in cases where the regulation has been challenged on both taking and due process grounds). If the regulation goes beyond preventing real harm to the public which is directly caused by the prohibited use of the property and instead imposes on those regulated the requirement of providing an affirmative public benefit, or if the regulation infringes on a fundamental attribute of ownership, the court proceeds with its taking analysis.
Guimont I, 121 Wn.2d at 603-04 (footnote omitted).
Here, the regulation is intended to prevent the obvious harm of allowing people to live in RVs for extended periods unless they are in a facility that features permanent sewer and water hookups and other amenities designed to render the park safe, habitable, and reasonably attractive.
The regulation here at issue prevents that harm; it does not confer an affirmative public benefit; it does not infringe on a fundamental attribute of ownership. Therefore, the facial taking analysis ends here.[3]
Substantive Due Process:
Next, the Owas contend that EMC 17.12.120 and Condition 16 violate substantive due process. In a substantive due process action, the person challenging the regulation has the burden of proof. Christianson v. Snohomish Health Dist., 133 Wn.2d 647, 659, 946 P.2d 768 (1997). However, as the defendant moving for summary judgment, the City has the burden of showing that there are no issues of material fact before the burden shifts to the Owas to make a prima facie case. The three-part due process reasonableness inquiry asks “(1) whether the regulation is aimed at achieving a legitimate public purpose; (2) whether it uses means that are reasonably necessary to achieve that purpose; and (3) whether it is unduly oppressive on the landowner.” Guimont I, 121 Wn.2d at 609, quoting Presbytery, 114 Wn.2d at 330. If the regulation fails to pass muster under any one of these factors, it will be struck down as violative of due process, and the remedy is invalidation of the regulation. Presbytery, at 331-32.
The City argues that courts have already effectively determined that EMC 17.12.120 is aimed at achieving a legitimate public purpose and that it uses means reasonably necessary to achieve that purpose, pointing to cases upholding the constitutionality of municipal ordinances restricting mobile homes to certain zones while banning them from others. See, e.g., Duckworth v. Bonney Lake, 91 Wn.2d 19, 586 P.2d 860 (1978). The Duckworth court observed that “mobile homes in conventional home neighborhoods will depress property values . . . whereas the effect will be quite the contrary if located in a mobile home zone.” Id. at 29.
The court also pointed to the limited storage capacity of mobile homes, which may result in “increased clutter or the mushrooming of sheds and other temporary shelters.” Id. at 30. Mobile homes also lack garage space, which may cause problems relating to planning for parking to meet the needs of the owners, their neighbors, and their guests without interference with normal movement of traffic. Id. Mobile home communities may bring differing needs for municipal services. Id. “[C]onsiderations of attractiveness and beauty’ also play a part. Id.
These problems demonstrate that there is a legitimate public concern in excluding mobile homes from conventional residential neighborhoods. There is also a legitimate public concern in restricting mobile home use and occupation to mobile home parks that have special features designed to mitigate these problems, such as landscaping, dimensional requirements, utility hookups, parking and storage facilities, and fire safety requirements, regardless of location. According to the City, all of these problems are exacerbated by long-term habitation of RVs, which are not designed for such use, have even less storage capacity than mobile homes, and little if any capacity for hook-ups to municipal utilities. However, as the Owas point out, it is important to distinguish between the facts and the law in Duckworth. Facts cannot serve as precedent. Duckworth is useful as precedent only to the extent that the facts in this case are sufficiently analogous to those in Duckworth to support applying the Duckworth court’s reasoning to a facility located in a commercially zoned area rather than in a residential area. Here, the City did provide admissible evidence of such facts, and the Owas have failed to refute them. Photos of the Owas’ RV park and descriptions of the scene obtained during the City’s inspections show that there were abandoned vehicles and junk accumulating on the property, as well as numerous health and fire-safety issues that are as much of a concern in commercial zones as in residential zones. Therefore, we conclude that the City has a legitimate public concern in limiting long-term habitation of vehicles, including RVs, to mobile home parks, and that Condition 16 and EMC 17.12.120 are reasonably necessary to achieve that purpose, notwithstanding that the RV park here at issue is located in a commercial zone and not a residential zone. Although the Owas suggest that the City could have achieved its purpose by means other than a 48-hour limit on stays, “the mere existence of another means does not establish that the means chosen were not reasonably necessary.” Christianson, 133 Wn.2d at 664.
The third question in the substantive due process analysis is whether the regulation is unduly oppressive to the landowner. This factor “will usually be the difficult and determinative one.” Presbytery, 114 Wn.2d at 331. The inquiry “lodges wide discretion in the court and implies a balancing of the public’s interest against those of the regulated landowner.” Id. The factors considered in determining whether a regulation is unduly oppressive are the nature of the harm sought to be avoided, the availability and effectiveness of less drastic protective measures, and the economic loss suffered by the property owner. Id. Factors in the public’s interest include the seriousness of the problem, the degree to which the owner’s land contributes to it, the degree to which the proposed regulation solves it, and the feasibility of less oppressive solutions. On the landowner’s side, the court considers the amount and percentage of value loss, the extent of remaining uses, past, present and future uses, temporary or permanent nature of the regulation, the extent to which the owner should have anticipated such regulation, and how feasible it is for the owner to alter present or currently planned uses. Christianson, 133 Wn.2d at 665.
The regulation here at issue does solve the problem of extended RV stays outside of a facility designed to accommodate them. As for the economic impact of the regulation, that depends on the use of the property. The Owas have established through their own affidavit and expert testimony that the Everett RV park is doomed to failure under the 48-hour limit. We think it likely that few customers who use their RVs for recreational and vacation purposes would be attracted to an RV park located in a busy commercial zone; indeed, the Owas’ failure to attract that kind of customer supports the supposition. Instead, the Owas’ primary customers appear to be people forced by economic hardship to use their RVs for permanent or semi-permanent low-cost housing no doubt this is the reason the Owas wanted to expand their use to permit 36 units housing 60 or 70 low-income people for stays of six to twelve months. But neither the probable need for more low-income housing in Everett, nor the Owas’ desire to furnish such housing is the appropriate measure of whether the regulation here at issue places an undue burden on the landowner. The Owas’ property is located in a C-1 commercial zone, and almost certainly has other profitable uses. There are few structures on the property that would inhibit its conversion to a different purpose. Moreover, the Owas should have anticipated the regulation, which was in place when their land was annexed to the City in 1989, as well as when they applied for the special use permit in 1996. On the other hand, the regulation does not distinguish between mobile home parks and RV parks, nor does it provide for the possibility of a less restrictive limit on stays, such as 72-hours, or a week. But given the other available options for profitable use of the property, we do not think that EMC 17.12.120 or Condition 16 violate substantive due process. Equal Protection:
Next, the Owas argue that EMC 17.12.120 and Condition 16 violate equal protection. “The equal protection clause requires that persons similarly situated with respect to the legitimate purposes of the laws receive like treatment.” In re Knapp, 102 Wn.2d 466, 473, 687 P.2d 1145 (1984). There are three different standards for determining whether an equal protection violation has occurred: strict scrutiny, intermediate scrutiny, and rational basis. “`Strict scrutiny applies when a classification affects a suspect class or threatens a fundamental right.'” Fusato v. Washington Interscholastic Activities Ass’n, 93 Wn. App. 762, 767, 970 P.2d 774 (1999), quoting State v. Manussier, 129 Wn.2d 652, 672-73, 921 P.2d 473
(1996). Under the strict scrutiny test, a classification will be upheld if it is shown to be necessary to accomplish a compelling state interest. Id. at 768. “[D]isparate impact of a suspect class does not trigger strict scrutiny unless the party challenging the government action demonstrates an element of purposeful discrimination or intent.” Id. at 770; Macias v. Department of Labor Indus., 100 Wn.2d 263, 269-70, 668 P.2d 1278 (1983).
The rational basis test applies when a statutory classification does not involve a suspect or semisuspect class and does not threaten a fundamental right. Id. The court asks three questions in determining whether the rational relationship test applies: (1) does the classification apply alike to all members of the designated class; (2) do reasonable grounds exist to support a distinction between those within and without each class; and (3) does the class have a rational relationship to the purpose of the legislation? Harris v. Department of Labor Indus., 120 Wn.2d 461, 477, 843 P.2d 1056 (1993). “[T]he classification will be upheld unless it rests on grounds wholly irrelevant to achievement of legitimate state objectives.” In re Personal Restraint of Stanphill, 134 Wn.2d 165, 175, 949 P.2d 365 (1998).
The Owas assert that strict scrutiny is warranted because they are Asian, and national origin is a potentially suspect class. They also claim that they have suffered a disparate impact because they are the only RV park in Everett subject to the 48-hour rule. But disparate impact is not enough; they must show that the City has purposefully discriminated against them by imposing Condition 16. This they have not done. Condition 16 is derived from EMC 17.12.120, which applies equally to all persons seeking to establish a new RV park in the City of Everett and who do not have a legal nonconforming use. The record indicates that the City imposed Condition 16 because the Owas did not have a nonconforming use, not because they are Asian. The City showed that other RV parks in Everett are exempt from EMC 17.12.120 because they had a legal nonconforming use. The appropriate classification is not “Asians” but rather “all RV park owners in Everett who do not have a nonconforming use.” The Owas’ claim is properly evaluated under the rational relationship test because (1) the 48-hour limit applies equally to all persons in this class; (2) persons with a nonconforming use have obtained vested rights to continue that use, and (3) it is rational to exempt persons with vested rights from regulations imposed on people who do not have such rights. The Owas have been treated differently from those who had RV parks in place before the ordinance was adopted because they do not have a legal nonconforming use, not because they are Asian. This is not a violation of equal protection. Moreover, restricting the number of RV parks that are allowed to exceed the 48-hour rule to those that have legal nonconforming uses has a rational relationship to the salutary purposes of the ordinance.
The Owas further argue that they suffered an equal protection violation because the City has granted variances and exceptions to the code for other mobile home parks. However, the Owas have never properly sought a variance. Furthermore, the hearing examiner cases cited by the Owas pertain to dimensional variances, not use variances. Damages:
The next issue pertains to damages. The Owas argue that the City is liable for damages under 42 U.S.C. § 1983 because the City violated substantive due process by imposing and enforcing Condition 16. To prevail on a § 1983 claim, the plaintiff must show that (1) a person has deprived the plaintiff of a federal constitutional or statutory right, and (2) that person acted under color of state law. Robinson v. City of Seattle, 119 Wn.2d 34, 58, 830 P.2d 318 (1992). Because the Owas failed to make a prima facie showing that their constitutional or statutory rights were violated, they cannot prevail on their § 1983 claim. Moreover, we agree with the City that this particular claim is barred by the statute of limitations. In Robinson the court considered the question of when the plaintiffs’ substantive due process cause of action accrued for purposes of their 42 U.S.C. § 1983 civil rights claim.[4] The nature of the alleged wrongful conduct in that case was the enforcement of Housing Provision Ordinance fees after a court had declared them invalid and issued injunctions against continued enforcement. The court held that the federal substantive due process rights of the plaintiff class, if violated, were violated at the instant this improper enforcement came to bear on them. Id. at 89. “Substantive due process is violated at the moment harm occurs[.]” Id. at 88. Accordingly, the three-year statute of limitations for § 1983 claims began to run at the moment the fees were imposed, which was the moment the causes of action accrued. Id. at 90.
The Owas argue that their cause of action did not accrue until Condition 16 was actually `enforced’ by the June 1999 violation citation. But the alleged harm to the Owas occurred at the moment Condition 16 came to bear on their property. This occurred on June 26, 1996, when the City issued the 1996 permit to the Owas. This lawsuit was filed on December 20, 1999, more than three years later.[5] Therefore, the three-year statute of limitations has expired. The fact that the Owas chose not to comply with Condition 16, and were not caught until two years later, does not extend the moment of accrual.
Attorney Fees:
The final issue before us concerns attorney fees. The City asks for attorney fees on appeal based on RCW 4.84.370, which provides that: (1) Notwithstanding any other provisions of this chapter, reasonable attorneys’ fees and costs shall be awarded to the prevailing party or substantially prevailing party on appeal before the court of appeals or the supreme court of a decision by a county, city, or town to issue, condition, or deny a development permit involving a site-specific rezone, zoning, plat, conditional use, variance, shoreline permit, building permit, site plan, or similar land use approval or decision. The court shall award and determine the amount of reasonable attorneys’ fees and costs under this section if: (a) The prevailing party on appeal was the prevailing or substantially prevailing party before the county, city, or town, or in a decision involving a substantial development permit under chapter 90.58 RCW, the prevailing party on appeal was the prevailing party or the substantially prevailing party before the shoreline[s] hearings board; and (b) The prevailing party on appeal was the prevailing party or substantially prevailing party in all prior judicial proceedings. (2) In addition to the prevailing party under subsection (1) of this section, the county, city, or town whose decision is on appeal is considered a prevailing party if its decision is upheld at superior court and on appeal.
Although the City is the prevailing party in this case, we decline to award fees to the City under this statute because the Owas did not appeal the trial court’s dismissal of their LUPA claims.
The City also seeks attorney fees as the prevailing party in an action brought under 42 U.S.C. § 1983, as allowed under 42 U.S.C. § 1988. “Where defendants are the prevailing parties, . . . the court may, in its discretion, award fees based upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation.” Washington State Republican Party v. Washington State Pub. Disclosure Comm’n, 141 Wn.2d 245, 289, 4 P.3d 808 (2000). The Owas’ lawsuit does not meet this standard, and neither does their appeal. Accordingly, we decline to award fees to the City under this statute.
We affirm the trial court’s grant of summary judgment to the City.
GROSSE and BAKER, JJ., concur.