Opposition Brief — Stearns v. City of Gig Harbor

Supreme Court, U.S.

No. 99-932 FILED

:

In The

Supreme Court of the UnitedCStiR&

4

GIG HARBOR MARINA, INC., a Texas corporation,

d/b/a ARABELLA’S LANDING, and STANLEY

STEARNS and JUDY STEARNS, husband and wife,

Petitioners,

THE CITY OF GIG HARBOR,

a Washington municipal corporation,

Respondent.

+

STANLEY and JUDY STEARNS, husband and wife, and

GIG HARBOR MARINA, INC., a Texas Corporation,

d/b/a ARABELLA’S LANDING MARINA,

Petitioners,

THE CITY OF GIG HARBOR,

a Washington municipal corporation,

Respondent.

¢

On Petition For Writ Of Certiorari

To The Washington Supreme Court

¢

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

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Caro.t A. Morris, WSBA #19241

Counsel of Record for Respondent

Law Orrice oF Carot A. Morais, P.C.

321 Bromley Place N.W.

Bainbridge Island, WA 98110

phone: (206) 780-3502

fax: (206) 780-3507

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

1. Has petitioner Stearns demonstrated that the state

statute at issue in this case (RCW 4.84.370) “penalizes”

him, or violates the First or Fourteenth Amendment to

the U.S. Constitution, if: (a) there is no fundamental right

to an appeal; (b) Stearns has had three hearings on the

merits of each case and lost in each hearing; (c) the

statute is rationally related to a legitimate governmental

purpose of discouraging duplicative and meritless

appeals; and (d) the statute does not threaten the integ-

rity or independence of the judiciary?

2. Has petitioner Stearns demonstrated that RCW

4.84.370 conflicts with 42 U.S.C. § 1983 and § 1988, if (a)

the statute does not require Stearns to join any potential

42 U.S.C. § 1983 and § 1988 claims with a petition to

review a governmental land use decision; or if (b) the

statute only authorizes an award of fees on appeal of a

governmental “land use approval or decision,” for the

land use portion of the decision?

3. Has petitioner Stearns shown a violation of his consti-

tutional rights by the City’s mere filing of a motion

(which was later withdrawn) informing Stearns of the

existence of a statute that would allow the City to recover

its attorneys’ fees, and placing Stearns on notice of the

City’s intent to seek its attorneys’ fees under a valid

statute?

ii

PARTIES TO THE PROCEEDING

The petitioners are Gig Harbor Marina, Inc., Stanley

Stearns and Judy Stearns. For some unexplained reason,

petitioners have included another lawsuit in this appeal,

involving another party, Arabella’s Landing Marina.

The respondent is the City of Gig Harbor, a Washington

municipal corporation.

iil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW........... i

PARTIES TO THE PROCEEDING ............c.00e: ii

SPUR INET ck soos eka wd pecs Res sgieededicwes 1

Pee ET AS 608 Sb Wee Vi oo ea PAE SETS 1

CONSTITUTIONAL AND STATUTORY PROVI-

NA ENE 5 6 a 40k Cw U Nee S530 3 6a eos 808 2

COUNTERSTATEMENT OF THE CASE ............ 2

PRN Sv ta Sp SO NA RW EN Vega cc ea y eted cena cs +

THE WASHINGTON COURTS DID NOT ERR IN

RULING THAT RCW 4.84.370 IS CONSTITU-

MATE WANG Ra oid HG 8 wy Rak VOCE OREN ORR 4

1. Stearns bears the burden of proving that RCW

4.84.370 is unconstitutional beyond a reasonable

Ne ee en ean Ce wughd MEO M Re a 4

2. RCW 4.84.370 does not violate due process

because Stearns does not have a fundamental

right to appeal, and he has taken advantage of

three opportunities to litigate the merits of his

Ee ia NSS se ict kha wa einnas Kes eueneweNws 5

a. Stearns’ challenge to RCW 4.84.370 cannot

proceed as a substantive due process claim

because the statute does not infringe upon a

fundamental right, and because there are

other more specific Constitutional provisions

under which Stearns can seek relief........ 5

b. Stearns cannot establish a procedural due

process claim because he has already had

three hearings on the merits ............... 6

iv

TABLE OF CONTENTS - Continued

Page

3. RCW 4.84.370 has not violated Stearns’ First

Amendment right to petition the government for

redress of grievances because it has not

obstructed his access to the courts............. 8

4. RCW 4.84.370 does not violate equal protection

because it does not infringe upon a fundamental

right, and because it is rationally related to a

legitimate governmental purpose............... 9

5. RCW 4.84.370 does not violate the separation of

powers doctrine because it is a legitimate exercise

Of legislative POWER. «oc... 6 ocd ecsnasar dekoewnes 13

6. Neither 42 U.S.C. § 1983 nor 42 U.S.C. § 1988

preempts RCW 4.84.370 because there is no con-

flict between federal civil rights legislation and

Sha THIN WE AINE 5k Si chic hsb ccs aera bas 14

STEARNS HAS NOT SHOWN THAT THE WASH-

INGTON COURT’S DENIAL OF HIS CLAIM FOR

DECLARATORY RELIEF UNDER 42 U.S.C. § 1983

SATISFIES THE CRITERIA FOR GRANTING A

WERE. COP SCI bs ia ee 15

CER RIES oe ccc c cced Cetke eens Rabe desh keene 18

APPENDIX

Full Opinion of the Washington Court of

Appeals in No. 22906-4-II, Division II, Gig Har-

bor Marina, Inc., d/b/a Arabella’s Landing,

and Stanley Stearns and Judy Stearns v. City of

Che FERC woo sits 3 5.6 SOR AERA Od SERA cpt eee App. 1

Vv

TABLE OF AUTHORITIES

Page

Cases

Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) ...5, 6

Campos v. Department of Labor & Indus., 75 Wn.

App. 379, 880 P.2d 543 (1994), review denied, 126

jw Be Es |.) Aan eee manners eee Pare 4

Filan v. Martin, 38 Wn. App. 91, 684 P.2d 769

4) REPRE De One PE ee eee TS Tere errant CPT ere ee 8

First Federal Savings & Loan Ass'n v. West Richland,

39 Wn. App. 401, 693 P.2d 171 (1985)..........--. 13

Ford Motor Co. v. Barrett, 115 Wn.2d 556, 800 P.2d

DOF SEI oo ic BS ered oboe ee Uh cane epanet 4, 6, 7, 12

Halverson v. Skagit County, 42 F.3d 1257 (9th Cir.

BODES i FS Sidon s ee ces can acaeae ee neeas nes 16

Haygood v. Younger, 769 F.2d 1350 (9th Cir. 1985),

cert. denied, 478 U.S. 1020 (1986) ............. scenes 7

In re Primus, 436 U.S. 412, 98 S. Ct. 1893, 56

L. Bed. 2d 417. (AGB) ..n on ca cn cin. carn ne cvncaveserens 8

Kalmas v. Wagner, 133 Wn.2d 210, 943 P.2d 1369

Ce if Pere rere rere pe ere Freee ree 14, 16

King County v. Boundary Review Board, 122 Wn.2d

648, 860 P.2d 1024 (1993) ........ ccc eee eee eceenee 12

Logan v. Zimmerman Brush Co., 455 U.S. 422, 102

S. Ce 2348. FE Es. Bik: 2d DOD CUP Rack ks ee bike v dens 7

Longview Fibre Co. v. DOE, 89 Wn.App. 627, 949

yo BSL). A weenie Here wi Tyr rr 4

Ortwein v. Schwab, 410 U.S. 656, 93 S. Ct. 1172, 35

L Bd. 2d SFA COT) iii ONE 6, 7

vi

TABLE OF AUTHORITIES - Continued

Page

Patel v. Penman, 103 F.3d 868 (9th Cir. 1996), cert.

denied, 520 U.S. 1240, 117 S. Ct. 1845, 137

L.. Babs Bek ROG Sar eae s ei eee ee ee 5

Seattle v. Fontanilla, 128 Wn.2d 492, 909 P.2d 1294

(1906). SRS Se ee ee 11

Seattle School Dist. No. 1 v. Department cf Labor &

Indus., 116 Wn.2d 352, 804 P.2d 621 (1991)........ 11

Seeley v. State, 132 Wn.2d 776, 940 P.2d 604 (1997) .... 10

Soundgarden v. Eikenberry, 123 Wn.2d 750, 871 P.2d

1050, cert. denied, 513 U.S. 1056°(1994) ............. 7

Stevedoring Servs. of Am. v. Eggert, 129 Wn.2d 17,

914 Plea. 737 CFG) ove sive sages cepa acne 15

Suburban Fuel Co. v. Lamoreaux, 4 Wn. App. 179,

GBD PZ Zi LUPE 6b oes nd ccd oranss bees cieek noes 14

Thurston County Rental Owners Ass’n v. Thurston

County, 85 Wn. App. 171, 931 P.2d 208, review

denied; 132 Wunld 1010 (1907). Seas ck ew es 11

United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808,

G6 L.. Bad. SU Ik iss ka eer bas week nieiaas Gas 8,9

United States v. Kras, 409 U.S. 434, 93 S. Ct. 631, 34

Ls ks De CI ik. ciny Kc idei Gree as 6

Vacco v. Quill, 521 U.S. 793, 117 S. Ct. 2293, 138

L. Bed. 2k BG Chak ok ieee Geeta 10, 11

Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct.

2256, 130-1. Ed. 2a Tre TAP Es ion 0 qe bebe acer 6

CONSTITUTIONAL PROVISIONS

Washington Constitution, Article 4, § 1.............. 13

Vii

TABLE OF AUTHORITIES - Continued

Page

STATUTES

BUSES Wi BE ei passim

eb ae ee re Sawa ewrasuees 6.4 passim

We a ok kn kag Onc dee ese VRE N asin en ase passim

EW TI in so 55 NG ARR i ne Sei ed BRE RSS CO 3

See PURE 5 Nak Ul es cecdceass cbessstavbages 11

pia adih Yeon Yass, Sabai i petra tat a8 a -

ea Rabe NA YE hide (NR aS Re maa OW oti se

Bishan, LRG LEAD AERIS SLAG. 5h, Ll il REELED ODDIE CRE

OO 0 ERTL Orie

ALG HB RESON 6 .

OPINION BELOW

Stearns appeals from the decision of the Washington

Supreme Court in Gig Harbor Marina, Inc. v City of Gig

Harbor, denying the petition for review. The opinion of

the Washington Court of Appeals was not issued on April

21, 1997, as stated by Stearns. Only the published portion

of the opinion was provided by Stearns to this Court in

their Appendix A. The City has attached a full copy of the

Court of Appeals’ decision (Div. Il, No. 22906-4-II, dated

March 26, 1999) as Appendix A. The City believes that

this full copy should be reviewed by this Court, as this

unpublished version also contains the Washington

Court’s decision dismissing the third question Stearns

has presented for review.

The case attached as Appendix A is only one of

Stearns’ five pending lawsuits against the City. Stearns

has attached a copy of the Court of Appeals’ decision in

one of these unrelated cases as Appendix C to his Petition

for Writ of Certiorari. It has absolutely no relevance to

this case, other than the fact that it demonstrates that

Stearns does not find the existence of RCW 4.84.370 to

“chill” decision to file an appeal of land use decisions

after he has lost at every level of appeal.

*

JURISDICTION

Stearns appeals the constitutionality of RCW 4.84.370

and requests declaratory relief under 42 U.S.C. § 1983.

+

CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE

Stearns believes that RCW 4.84.370 is unconstitu-

tional under the First Amendment to the U.S. Constitu-

tion, Section 1 of the Fourteenth Amendment of the U.S.

Constitution and Section 1983 of the United States Code.

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COUNTERSTATEMENT OF THE CASE

One of the development schemes proposed by

Stearns for his property involved an application for a site

plan and conditional use permit for an office-retail build-

ing, a yacht club and an open plaza. The City hearing

examiner denied the site plan application because of

inadequate on-site parking, but granted the conditional

use permit on condition that Stearns provide additional

on-site parking. The City Council affirmed the denial of

the site plan and reversed the hearing examiner’s deci-

sion on the conditional use permit, finding that such a

permit could not be granted if the site had inadequate

parking.

Stearns has made an erroneous statement of the facts

on page 3 of his Petition. He claims that “during the

review of the Stearns’ applications, the City changed its

interpretation of the zoning code’s parking requirements

for the Stearns’ proposal.” Even if this were true, the

City’s interpretation is the City’s final decision, not a

statement made by any City staff member during the

application review process.

Stearns appealed the City Council’s denial of his

applications under the Land Use Petition Act, chapter

36.70C RCW. The Pierce County Superior Court dis-

missed Stearns’ land use petition and all claims against

the City with prejudice. The City thereafter filed a motion

for calculation of the amount of attorneys’ fees and costs

to which it would be entitled under RCW 4.84.370.

Stearns’ objected to the motion claiming it was prema-

ture, and that RCW 4.84.370 was unconstitutional. The

City withdrew its motion upon Stearns’ objection. The

Court thereafter allowed Stearns to amend his dismissed

petition to add two causes of action for declaratory relief

on the constitutionality of RCW 4.84.370, and for an

award of attorneys’ fees and costs against the City under

42 U.S.C. § 1988 for an alleged violation of civil rights.

The Superior Court denied Stearns’ summary judg-

ment motion for declaratory relief, and granted the City’s

motion to dismiss Stearns’ Section 1983 claim, finding

that the Section 1983 claim was frivolous and awarding

the City its attorney’s fees.

Stearns appealed to the Washington Court of

Appeals, and on March 26, 1999, the Court issued its

decision finding that the City correctly denied the devel-

opment permits, that RCW 4.84.370 was constitutional,

and dismissing Stearns’ 42 U.S.C. § 1983 claims.

Declarations of Stanley Stearns and Richard Lindberg.

Stearns makes much of the “chilling effect” of RCW

4.84.370. He submits a declaration to this Court explain-

ing that as a result of the statute, he was discouraged

from filing an appeal. However, the facts are completely

opposite - after the City Council denied his development

applications, he appealed to Pierce County Superior

Court, the Washington Court of Appeals and the Wash-

ington Supreme Court. In the unrelated case he has

attached as Appendix C to his Petition for Writ of Cer-

tiorari, Stearns further demonstrates that he is willing to

appeal adverse land use decisions, even when he loses on

every level of appeal.

ARGUMENT

THE WASHINGTON COURTS DID NOT ERR IN RUL-

ING THAT RCW 4.84.370 IS CONSTITUTIONAL.

1. Stearns bears the burden of proving that RCW

4.84.370 is unconstitutional beyond a reasonable

doubt.

Stearns bears the burden of proving that RCW

4.84.370 is unconstitutional beyond a reasonable doubt.

Ford Motor Co. v. Barrett, 115 Wn.2d 556, 563, 800 P.2d 367

(1990); Campos v. Department of Labor & Indus., 75 Wn.

App. 379, 384, 880 P.2d 543 (1994), review denied, 126

Wn.2d 1004 (1995). A statute must be given a construction

which preserves its constitutionality if at all possible.

Longview Fibre Co. v. DOE, 89 Wn.App. 627, 632, 949 P.2d

851 (1998).

2. RCW 4.84.370 does not violate due process

because Stearns does not have a fundamental

right to appeal, and he has taken advantage of

three opportunities to litigate the merits of his

case.

Stearns contends that RCW 4.84.370 violates due pro-

cess. He does not, however, differentiate between pro-

cedural and substantive due process, or set out the

threshold requirements for either type of claim.

a. Stearns’ challenge to RCW 4.84.370 cannot

proceed as a substantive due process claim

because the statute does not infringe upon a

fundamental right, and because there are

other more specific Constitutional provi-

sions under which Stearns can seek relief.

Stearns argues that RCW 4.84.370 has no apparent

legitimate purpose. If this argument is designed to trigger

a substantive due process analysis, it must fail. Recent

case law establishes a new test for analyzing substantive

due process claims. Patel v. Penman, 103 F.3d 868, 874-75

(9th Cir. 1996), cert. denied, 520 U.S. 1240, 117 S. Ct. 1845,

137 L. Ed. 2d 1048 (1997); Armendariz v. Penman, 75 F.3d

1311, 1318-26 (9th Cir. 1996). Under these cases, substan-

tive due process no longer provides protection against

government conduct where such conduct is circum-

scribed by other more specific provisions of the Constitu-

tion. Armendariz at 1319. Stearns has asserted that RCW

4.84.370 violates the First Amendment, equal protection

and procedural due process. Because these provisions of

the Constitution potentially protect Stearns against the

alleged harm of RCW 4.84.370, Stearns’ claims must be

analyzed under those provisions alone, and not under the

more general guarantees of substantive due process. Arm-

endariz at 1325-26. Notwithstanding the above, Stearns

cannot establish a substantive due process claim. Sub-

stantive due process is not implicated unless a fundamen-

tal right is involved. Washington v. Glucksberg, 521 U.S.

702, 117 S. Ct. 2258, 138 L. Ed. 2d 772, 787 (1997). Funda-

mental rights include those specific freedoms protected

by the Bill of Rights, and those rights indispensable to

personal liberty such as the right to marry, to have chil-

dren, and to bodily integrity. Id. at 787.

The “rights” asserted by Stearns do not fall in this

same category. He claims RCW 4.84.370 impermissibly

infringes upon his appeal rights. “Due process does not,

however, guarantee a right to appeal.” Ford Motor Co., 115

Wn.2d at 569 (citing Ortwein v. Schwab, 410 U.S. 656, 660,

93 S. Ct. 1172, 35 L. Ed. 2d 572 (1973)). Stearns also

complains about the financial “burden” of paying the

government's attorneys’ fees. Economic interests, how-

ever, have far less constitutional significance than funda-

mental rights. Ortwein, 410 U.S. at 659; United States v.

Kras, 409 U.S. 434, 444-46, 93 S. Ct. 631, 34 L. Ed. 2d 626

(1973).

b. Stearns cannot establish a procedural due

process claim because he has already had

three hearings on the merits.

Stearns suggests that RCW 4.84.370 violates due pro-

cess because it insulates government land use decisions

from judicial review. Stearns’ argument is baseless

because he has already had his day in court. Due process

requires that deprivation of life, liberty or property be

preceded by notice and an opportunity for a hearing

appropriate to the nature of the case. Logan v. Zimmerman

Brush Co., 455 U.S. 422, 428, 102 S. Ct. 1148, 71 L. Ed. 2d

265 (1982); Soundgarden v. Eikenberry, 123 Wn.2d 750, 768,

871 P.2d 1050, cert. denied, 513 U.S. 1056 (1994). The

degree of protection depends upon the nature of the

interest affected. Haygood v. Younger, 769 F.2d 1350, 1355

(9th Cir. 1985), cert. denied, 478 U.S. 1020 (1986).

Stearns has received the degree of protection he

deserves. Stearns has already had three hearings on the

merits of his claim; one with the Hearing Examiner,

another with the City Council, and a third in Superior

Court. Due process does not require that a plaintiff have

an appeal where at least one hearing has already been

held. Ortwein, 410 U.S. at 659-60.

The Washington Courts previously determined that

an attorneys’ fees statute similar to RCW 4.84.370 did not

violate due process. Ford Motor Co. v. Barrett, 115 Wn.2d

556, 800 P.2d 367 (1990). In that case, the Court upheld

provisions of the Lemon Law Act allowing prevailing

consumers, but not prevailing manufacturers, to recover

attorneys’ fees incurred on appeal. Id. at 570. Like

Stearns, the manufacturers argued that the attorneys’ fee

provision “burdened” their right to appeal and their right

of access to the courts. Id. at 569. The Court rejected these

arguments, concluding that the legislature may make

rules concerning the type of damages recoverable and the

manner in which damages are paid. Id. at 570.

3. RCW 4.84.370 has not violated Stearns’ First

Amendment right to petition the government

for redress of grievances because it has not

obstructed his access to the courts.

Stearns contends that RCW 4.84.370 violates his First

Amendment right to petition the government for redress

of grievances. He argues that litigation is a protected

form of speech, and that RCW 4.84.370 exacts an uncon-

stitutional penalty on such speech. Stearns presses this

point even though he has litigated the merits of his case

at the administrative and judicial levels.

The right to petition the government for redress of

grievances is a First Amendment right that protects col-

lective activity taken to achieve meaningful access to the

courts. In re Primus, 436 U.S. 412, 426, 98 S. Ct. 1893, 56

L. Ed. 2d 417 (1978). This right is not absolute. Filan v.

Martin, 38 Wn. App. 91, 97, 684 P.2d 769 (1984). Stearns’

First Amendment claim must fail for the simple reason

that he has already had meaningful access to the courts.

There is no merit to Stearns’ contention that RCW

4.84.370 “penalizes” his right of access to the courts. The

statute has no operative effect until the litigant loses at

the administrative, superior court, and appellate levels.

RCW 4.84.370. The statute did nothing to stop Stearns

from filing his land use petition, pursuing his claims in

court, or filing this appeal.

The fact that attorneys’ fees have not been imposed

against Stearns under RCW 4.84.370 — and may never be

imposed - is further justification for dismissing Stearns’

First Amendment claims. In United States v. Harriss, 347

U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989 (1954), the Supreme

Court refused to consider a First Amendment attack on

the constitutionality of a penalty provision within the

Federal Regulation of Lobbying Act that prohibited con-

victed persons from engaging in lobbying activities for

three years from the date of conviction. Id. at 626-27. The

appellees argued that the penalty provision violated their

right to petition the government. Id. at 627. The Court

found it “unnecessary” to pass on this contention:

“Unlike [other provisions of the Lobbying Act, the pen-

alty provision] has not yet been applied to the appellees,

and it will never be so applied if the appellees are found

innocent of the charges against them.” Id.

4. RCW 4.84.370 does not violate equal protection

because it does not infringe upon a fundamen-

tal right, and because it is rationally related to a

legitimate governmental purpose.

Stearns claims that RCW 4.84.370 violates equal pro-

tection because “it imposes a penalty which operates only

against non-governmental litigants in land use cases.” AB

at 16. Stearns misreads the statute. The City has thought

of at least one situation, and there may be others, where a

litigant can use RCW 4.84.370 against a local government.

Take the example where a county hearing examiner

issues a land use permit with three conditions, and the

applicant appeals the authority of the hearing examiner

to impose the conditions. On appeal, the county council

overturns two of the three conditions, but affirms the

third. Under these circumstances, the applicant could in

good faith argue that it is the “substantially prevailing”

party at the local level. Assume that the applicant then

10

appeals the imposition of the third condition to superior

court and wins that appeal. The applicant is then the

“prevailing party” at the superior court level. Finally, if

the county were then to appeal reversal of the third

condition, but lose, the applicant would be the prevailing

party in the court of appeals. In this hypothetical, the

applicant is the prevailing or substantially prevailing

party at each stage of the proceedings, and a court could

find that the applicant is entitled to an award of attor-

neys’ fees from the county under RCW 4.84.370.

Even if we assume that RCW 4.84.370 creates the

classification suggested by Stearns, the statute does not

violate equal protection. The first step in equal protection

analysis is to determine the proper standard of review

against which to test the challenged legislation. Seeley v.

State, 132 Wn.2d 776, 791, 940 P.2d 604 (1997). When a

statute does not burden a fundamental right or target a

suspect class, the reviewing court will uphold the statute

so long as it bears a rational relation to some legitimate

end. Vacco v. Quill, 521 U.S. 793, 117 S. Ct. 2293, 138

L. Ed. 2d 834, 841 (1997).

Rational basis review is the proper standard against

which RCW 4.84.370 should be measured. Stearns has not

argued, and there is no proof, that he is a member of a

suspect class. Stearns has also failed to show that RCW

4.84.370 implicates any fundamental rights. The “right”

or “interest” allegedly infringed upon by the statute is

Stearns’ desire to appeal without the risk of having to pay

the City’s attorneys’ fees. Stearns’ economic interests

have “far less constitutional significance” than traditional

fundamental interests. Ortwein, 510 U.S. at 659.

11

The rational basis test only requires that any classi-

fication created by the statute bear a rational relation to a

legitimate state interest. Vacco, 138 L. Ed. 2d at 841.

Stearns bears the burden of proving that the alleged

classification created by RCW 4.84.370 lacks any rational

basis and is “purely arbitrary.” Seattle v. Fontanilla, 128

Wn.2d 492, 505, 909 P.2d 1294 (1996); Seattle School Dist.

No. 1 v. Department of Labor & Indus., 116 Wn.2d 352, 362,

804 P.2d 621 (1991).

Stearns falls well short of meeting his burden of

proof. Stearns identifies “unsuccessful land use appel-

lants” as the class of people singled out by the statute. He

contends that this classification is based on an improper

purpose to “shield government from having its exercise

of power over private land from being reviewed by an

appellate court.” The legislature has wide discretion in

creating classifications, Seattle School Dist., 116 Wn.2d at

362, and a classification must be “purely arbitrary” to

overcome the strong presumption of constitutionality,

Thurston County Rental Owners Ass'n v. Thurston County,

85 Wn. App. 171, 186, 931 P.2d 208, review denied, 132

Wn.2d 1010 (1997). “If the court can reasonably conceive

any state of facts which will sustain the classification, it

will be sustained.” Seattle School Dist., 116 Wn.2d at

362-63.

Shifting a degree of risk to land use litigants makes

sense when we consider the standards of review applica-

ble to land use decisions. Under LUPA, the superior court

reviews the decision de novo, that is, the court looks to

the administrative record to determine whether the land

use decision is supported by substantial evidence. RCW

36.70C.130(1). Appellate courts also review the land use

12

decision on the administrative record, not on the record

created in superior court. King County v. Boundary Review

Board, 122 Wn.2d 648, 672, 860 P.2d 1024 (1993). Without

RCW 4.84.370, there is little to discourage land use liti-

gants from abusing the appellate process, and seeking

duplicative judicial review of the same land use decision.

RCW 4.84.370 attempts to stem such abuse by striking a

balance between protecting legitimate claims and dis-

couraging meritless ones. It is certainly rational and legit-

imate for the legislature to enact legislation to discourage

meritless appeals and protect the limited resources of

local governments and the judicial system.

Equal protection arguments nearly identical to those

raised by Stearns have been considered and rejected by

this Court. In the recent Ford Motor Co. v. Barrett decision,

the Court determined that a fee-shifting statute allowing

prevailing consumers but not prevailing manufacturers to

recover attorneys’ fees incurred in appealing a decision of

the motor vehicle arbitration board did not violate equal

protection. 115 Wn.2d at 567-68. Ford, like Stearns in this

case, argued that the attorneys’ fee provision violated

equal protection by “singling out a class of litigants and

subjecting them to onerous penalties as a condition of

seeking redress within the court system.” Id. at 561. Ford

also argued that the practical effect of the statute was to

allow only consumers to appeal without risk, and that the

fee-shifting statute burdened its fundamental right of

access to the courts by restricting its right to appeal. Id.

Finding these claims to be without merit, the Court con-

cluded that Ford did not meet its burden of demonstrat-

ing the statute unconstitutional beyond a reasonable

doubt. id. at 567-68.

13

5. RCW 4.84.370 does not violate the separation of

powers doctrine because it is a legitimate exer-

cise of legislative power.

Stearns contends that RCW 4.84.370 frustrates the

constitutional powers of the state courts delegated by

Article 4, § 1 of the Washington Constitution. His argu-

ment presupposes that state courts have the exclusive

authority to define a person’s right to recover attorneys’

fees. To the contrary, it is the legislature, not the courts,

that possesses this power. “[T]he allowance of attorney

fees as part of the costs of an action is dependent upon

statutory authority expressly conferring the power to

allow them.” First Federal Savings & Loan Ass’n v. West

Richland, 39 Wn. App. 401, 408, 693 P.2d 171 (1985). A

judicial invalidation of RCW 4.84.370 is more likely to

upset the balance of powers than affirmance of the stat-

ute. Any classifications drawn by the statute demonstrate

a legislative policy choice which rightfully belongs with

the legislature and not this Court.

Stearns completely mischaracterizes RCW 4.84.370

when he states that it shields local government from

appellate review. That is far from the truth. The statute

does nothing to prevent appellate review. It does not

prohibit the filing of an appeal or require a land use

litigant to pay an exorbitant fee prior to having its case

heard on the merits. Land use litigants with legitimate

claims will not be deterred from seeking appellate review.

It is only those litigants with meritless claims, who have

already lost at the administrative and judicial levels, that

face the risk of paying local government's attorneys’ fees

on appeal.

14

Stearns’ separation of powers claim demonstrates a

fundamental misunderstanding of the relationship

between the legislature and the judiciary. The legislature

has the power to change substantive law, and may create

or even abolish causes of action. Suburban Fuel Co. v.

Lamoreaux, 4 Wn. App. 179, 181, 480 P.2d 216 (1971).

Accordingly, the enactment of an attorneys’ fees statute is

a legitimate exercise of legislative power and does not

impair recognized judicial powers.

6. Neither 42 U.S.C. § 1983 nor 42 U.S.C. § 1988

preempts RCW 4.84.370 because there is no con-

flict between federal civil rights legislation and

state land use laws.

Stearns contends that RCW 4.84.370 conflicts with the

Civil Rights Act, and is therefore preempted. Stearns

plays up this alleged “conflict” by noting that land use

claims are often paired with civil rights claims. AB at 22.

Stearns’ mistakenly assumes that the state and federal

statutes apply to the same activity.

The Civil Rights Act and RCW 4.84.370 serve com-

pletely different purposes. Section 1983 provides a mech-

anism for persons to challenge government conduct

violative of a federal constitutional or statutory right. 42

U.S.C. § 1983; see also Kalmas v. Wagner, 133 Wn.2d 210,

943 P.2d 1369 (1997). 42 U.S.C. § 1988 (“Section 1988”)

provides for an award of reasonable attorneys’ fees and

costs to the prevailing party in a Section 1983 action. 42

U.S.C. § 1988. These statutes do not provide a mechanism

for persons to obtain judicial review of local government

land use decisions.

15

RCW 4.84.370, on the other hand, applies in land use

cases, not civil rights cases. The statute’s scope is limited

to cases where a land use applicant challenges a local

land use decision. RCW 4.84.370. The statute does noth-

ing to impede any rights or procedures created by the

Civil Rights Act.

Absent any overlap in the state and federal schemes,

there can be no conflict warranting preemption. The test

for preemption is as follows:

Preemption may occur if (1) Congress passes a

statute that expressly preempts state law, (2)

Congress occupies the entire field of regula-

tions, or (3) state law conflicts with federal law,

making compliance with both an impossibility

or state law presents an obstacle to the accom-

plishment of the federal purpose.

Stevedoring Servs. of Am. v. Eggert, 129 Wn.2d 17, 23, 914

P.2d 737 (1996). Stearns has not alleged that the Civil

Rights Act expressly preempts state land use regulations,

or that Congress has occupied the entire field of land use

law. Stearns’ only argument is that RCW 4.84.370 “con-

flicts” with the “remedial objectives” of the Civil Rights

Act. AB at 23-24.

Stearns has clearly failed to show that it is “physi-

cally impossible” to comply with both RCW 4.84.370 and

the Civil Rights Act. The state and federal statutes cover

completely different subjects. One is designed to protect

against unconstitutional governmental conduct, wherever

it occurs, and the other only applies in land use cases.

The fact that land use claims can sometimes be joined

with civil rights claims does not prove that the statutes

conflict. Section 1983 and Section 1988 do not even come

16

into play in land use cases where there is no allegation of

unconstitutional governmental conduct.

STEARNS HAS NOT SHOWN THAT THE WASHING-

TON COURT’S DENIAL OF HIS CLAIM FOR

DECLARATORY RELIEF UNDER 42 U.S.C. § 1983 SAT-

ISFIES THE CRITERIA FOR GRANTING A WRIT OF

CERTIORARI.

Stearns contends that the City’s filing of its Motion

for Calculation of Attorneys’ Fees Under RCW 4.84.370

violated his constitutional rights, entitling him to attor-

neys’ fees and costs under Section 1988. There is abso-

lutely no merit to this argument. The City never sought

an actual award of attorneys’ fees under the statute, and

immediately withdrew the motion when Stearns objected.

The filing of the motion was no more harmful to Stearns

than if the City had filed an answer requesting its attor-

neys’ fees and costs under the statute. Viewing the evi-

dence in the light most favorable to Stearns, the Superior

Court nonetheless found the Section 1983 claim to be

frivolous.

In order to establish a cause of action under Section

1983, Stearns must show (1) that the City violated a

federal constitutional or statutory right, and (2) that the

City was acting under color of state law. Kalmas, 133

Wn.2d at 215. To obtain an award of attorneys’ fees

against the City, Stearns must also show that his alleged

constitutional injury was proximately caused by an act or

omission of the City. Halverson v. Skagit County, 42 F.3d

1257, 1260 (9th Cir. 1994).

17

When measured against these threshold require-

ments, it is obvious that Stearns has not met his burden of

proof. Stearns has not proven that RCW 4.84.370 violates

any of his constitutional rights. See discussion infra part

II.B. He has also failed to explain how the City can be the

target of a Section 1983 action for bringing a motion

under the authority of a constitutional statute.

Stearns claims that the City Attorney “chilled” his

right to appeal by putting him on notice that she would

be requesting reimbursement of the City’s attorneys’ fees

under RCW 4.84.370. Stearns attempts to provide proof of

such “chilling” effect in the form of a Declaration of

Richard Lindberg, and a Declaration of Stanley Stearns.

Mr. Lindberg is not an attorney for Stearns, and is not a

party to this action. His independent experience with

RCW 4.84.370 as a representative of a neighborhood asso-

ciation in Kitsap County makes it clear that if there is any

“chilling” effect associated with the statute, it is caused

by the statute itself, not by any action of the City Attor-

ney. Similarly, if Stanley Stearns’ declaration proves any-

thing, it is that the existence of RCW 4.84.370, not any

actions of the City Attorney, have forced him to think

twice before appealing. The source of Stearns’ “chill” is

obviously RCW 4.84.370, not the City Attorney’s act of

putting him on notice of the statute.

It is incomprehensible how the City can be subject to

a Section 1983 action under these facts. Notifying Stearns

that the City would seek reimbursement of its attorneys’

fees under a valid statute was no different than if the City

had filed an answer requesting the same relief. In addi-

tion, the City never sought - and may never obtain — an

award of attorneys’ fees under the statute. Any injury to

18

Stearns is the result of RCW 4.84.370, not the acts or

omissions of the City Attorney.

e ——

CONCLUSION

For the foregoing reasons, the City respectfully

requests that the Court deny Stearns’ petition for a writ

of certiorari.

DATED this 3rd day of January, 2000.

Respectfully submitted,

Law Orrice or Carot A.

Morris, P.C.

Caro. A. Morris, WSBA #19241

Attorney for Respondent

App. 1

IN THE COURT OF APPEALS OF THE

STATE OF WASHINGTON

DIVISION II

GIG HARBOR MARINA, No. 22906-4-II.

INC., a Texas corporation,

d/b/a ARABELLA’S

LANDING, and STANLEY

STEARNS and JUDY

STEARNS, husband and

wife,

PUBLISHED OPINION

(Filed March 26, 1999)

Appellants,

v.

CITY OF GIG HARBOR, a

municipal corporation,

Respondent.

ARMSTRONG, J. - The City of Gig Harbor denied

the Stearnses’ proposed development of property. The

Stearnses appealed to the superior court and joined a 42

U.S.C. § 1983 claim alleging the City violated their civil

rights. The superior court affirmed the City’s denial of

the development, dismissed the § 1983 action and, find-

ing the § 1983 action frivolous, awarded attorney’s fees to

the City. The Stearnses filed this appeal and the City now

seeks attorney's fees under RCW 4.84.370, which allows

attorney's fees in land use cases to petitioners who have

substantially prevailed in front of the local government,

the trial court, and the appellate court. The Stearnses

contend that RCW 4.84.370 violates equal protection, due

process, free speech, and the right to redress grievances.

The Stearnses also challenge the dismissal of their 42

App. 2

U.S.C. § 1983 claim and the trial court’s finding that such

claim was frivolous. Finally, the Stearnses contend that

Gig Harbor misapplied its own ordinances concerning

parking space requirements, permitted usage, and height

requirements. We hold the statute constitutional as

applied here. But we reverse the award of attorney’s fees

based upon bringing a frivolous action. Otherwise, we

affirm the trial court.

FACTS

Stanley and Judy Stearns own four and one-half lots

in the City of Gig Harbor on which they operate a

marina, Gig Harbor Marina, Inc., known as Arabella’s

Landing. These lots, zoned “Waterfront Millville,” are

currently developed with a marina service building, a

duplex, and a single-family residence.

The Stearnses proposed to develop the site further

with an office-retail building, a yacht club, and an open

plaza. The Stearnses applied for site plan approval and

for a conditional-use permit, which was required to

develop the yacht club. The hearing examiner denied site

plan approval because of inadequate on-site parking,

but granted a conditional-use permit on condition the

Stearnses provide additional parking. The Stearnses con-

tested the City’s method of calculating the parking, argu-

ing that the City was misinterpreting its code. Under the

Stearnses’ interpretation of the code, the site had ade-

quate parking.

The Gig Harbor City Council affirmed the site plan

denial because of the parking inadequacy. In addition, the

council found “the site plan is not consistent with the

App. 3

City’s comprehensive plan,” the proposed use was not

“medium usage,” and the proposed building did not

comply with height restrictions in the Waterfront Mill-

ville zone. The city council reversed the grant of the

conditional-use permit, finding that such a permit could

not be granted if the site had inadequate parking.

The Stearnses filed a Land Use Petition in Pierce

County Superior Court under the Land Use Petition Act

(LUPA), RCW 36.70C. In July 1996, the trial court

affirmed Gig Harbor’s land use decisions and dismissed

the Stearnses’ petition.

Seven days after the petition was dismissed, the City

filed a “Motion for Calculation of Attorneys’ Fees Under

RCW 4.84.370.” The City asked the court to “calculate the

amount of attorneys’ fees that the City would be entitled

to under RCW 4.84.370,[1] in the event this action is

1 RCW 4.84.370 provides:

Appeai of land use decisions - Fees and costs. (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

App. 4

appealed and the City prevails on appeal.” The City

further stated that “a ruling at this time would simplify

the issues on appeal and clarify the financial risks facing

each party.” The City accompanied this motion with two

affidavits of counsel justifying $11,712 in attorney’s fees.

After the Stearnses opposed the motion, the City

withdrew it. The Stearnses then moved to amend their

petition to add § 1983 claims; they alleged that the City

had used the “motion to calculate attorney’s fees under

RCW 4.84.370” as a threat to deter the Stearnses’ appeal

of the Land Use Petition. The Stearnses contended that

the statute was unconstitutional and that their proposed

amendment sought a declaration of the rights and duties

of the parties. The trial court allowed the amendment.

The Stearnses moved for summary judgment, and the

City countered with a “Motion to Dismiss Damage

Claims Under 42 U.S.C. § 1983 and 42 U.S.C. § 1988 With

Prejudice.” The trial court denied the Stearnses’ motion

for summary judgment, granted the City’s motion to

dismiss, and found that the § 1983 claims were frivolous.

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.

App. 5

The City subsequently moved for attorney’s fees under 42

U.S.C. § 1988, RCW 4.84.185, and CR 11; the trial court

awarded $5,773.80 in fees against the Stearnses and their

attorneys.

ANALYSIS

The City first contends that the constitutional issues

are not ripe because no attorney’s fees have been

assessed against the Stearnses under RCW 4.84.370. The

argument lacks merit. In both actions? pending before

this court involving the Stearnses and the City, the City

has requested attorney’s fees on appeal on the basis of

RCW 4.84.370. This raises the question of whether the

statute is constitutional.

A. Is RCW 4.84.370 Constitutional?

The Stearnses’ constitutional challenges to the statute

rest upon two propositions: (1) the burden created by the

statute is not carried equally by all litigants in land use

cases, but only by those who challenge a local govern-

ment’s land use decision; and (2) while not absolutely

denying the right to appeal, the statute chills the exercise

of such right.

2 The other action filed in this court is Stearns v. City of Gig

Harbor, No. 22912-9-II (March 26, 1999).

App. 6

1. Equal Protection

a. Standard of Review

The legislative classification here defines a party’s

liability for the attorney’s fees and costs of the opposing

party on appeal of a local land use decision. A party who

prevails or substantially prevails is entitled to fees and

costs, and the statute defines the concept of “prevailing

party.” Assuming the statute creates a classification that

treats members of the same class differently, such classi-

fication “neither involves suspect criteria (race, religion,

national origin, alienage, gender) nor affects fundamental

interests ( [e.g.], free speech, privacy, voting rights), [and]

the court will engage in only minimum scrutiny of the

enactments[.]” American Network, Inc. v. Utilities and

Transp. Comm'n, 113 Wn.2d 59, 77-78, 776 P.2d 950 (1989)

(citation omitted) (footnote omitted). Statutes that regu-

late business and economic activities “carry a strong pre-

sumption of constitutionality.” American Network, 113

Wn.2d at 78, 776 P.2d 950. And we will uphold such

statutes if the classification created bears any rational

relation to a legitimate state interest. Seeley v. State, 132

Wn.2d 776, 795, 940 P.2d 604 (1997). Stated slightly differ-

ently, such a classification will be upheld “ ‘unless it rests

on grounds wholly irrelevant to the achievement of legiti-

mate state objectives.’ ” State v. Coria, 120 Wn.2d 156, 171.

839 P.2d 890 (1992) (quoting Omega Nat'l Ins. Co. v. Mar-

guardt, 115 Wn.2d 416, 431, 799 P.2d 235 (1990)).

App. 7

b. Burden of Proof

The party challenging the constitutionality of a stat-

ute bears the burden of proving it is unconstitutional

beyond a reasonable doubt. Ford Motor Co. v. Barrett, 115

Wn.2d 556, 563, 800 P.2d 367 (1990). The Stearnses thus

bear the burden of proving all the elements of an equal

protection violation. Initially, the Stearnses must show

that the statute fails to afford like treatment to “persons

similarly situated with respect to a legitimate purpose of

the law. ... ” Coria, 120 Wn.2d at 169 (citing State v.

Schaaf, 109 Wn.2d 1, 17, 743 P.2d 240 (1987)). Next, if the

Stearnses can show such disparate treatment, they must

demonstrate that the difference lacks any rational basis

and is “ ‘purely arbitrary.’ ” Coria, 120 Wn.2d at 172 (quo-

ting Omega Nat'l Ins., 115 Wn.2d at 431).

c. Does the Statute Benefit Only One Class of Liti-

gants, i.e., Local Government?

The statute is neutral on its face, i.e., it does not say

that only local governments can recover fees on appeal.

But not all facially neutral statutes are neutral in their

application; some legislation denies equal protection by

the manner in which it is applied. See 2 Ronatp D.

ROTUNDA, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND

Procepure § 18.4, at 344 (1986). Examples of “as-applied”

challenges are Village of Arlington Heights v. Metropolitan

Housing Dev. Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d

450 (1977) (challenge to a facially neutral zoning deci-

sion), and Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040,

48 L.Ed.2d 597 (1976) (challenge to facially neutral police

screening exam).

App. 8

Stearnses contend that not all parties who appeal

land use decisions are afforded like treatment under the

statute. The Stearnses argue that because the government

is both decision-maker and party at the local level, it will

never appeal its own land use decision, and so, the gov-

ernment will never be the losing party at the first level.

Thus, the Stearnses conclude, the government will never

be assessed fees and costs under the statute because it

will never lose at all levels.

But the Stearnses’ argument rests upon an assump-

tion not demonstrated by this record: that even assuming

the City will never appeal its own decision, it is neces-

sarily the prevailing or substantially prevailing party at

the local level. The City poses an illustrative hypothetical.

Suppose a city hearings examiner approves a proposed

development, attaching three or more conditions. The

developer appeals to the city council, which strikes all

but one of the conditions; unless the stricken conditions

were minor, the developer would have substantially pre-

vailed in proceedings before the City. Then suppose the

developer appeals the remaining condition to superior

court, which strikes it; the developer would be the pre-

vailing party in that judicial proceeding as well. Finally,

suppose the City appeals the superior court’s decision to

the Court of Appeals, which affirms the trial court. The

developer would be the substantially prevailing or pre-

vailing party before the appellate court, the trial court,

and the City and thus, the developer, not the City, would

be entitled to attorney’s fees and costs under the statute.

This construction is supported by paragraph (2) of

the statute, which provides: “In addition to the prevailing

party under subsection (1) of this section, the county, city,

|

App. 9

or town whose decision is on appeal is considered a

prevailing party if its decision is upheld at superior court

and on appeal.” RCW 4.84.370(2).

Under the hypothetical, a developer who improved

his or her position from the hearing examiner to the city

council, but then failed to improve through the superior

court and appellate court could argue under subsection

(1) that the City is not entitled to fees because the devel-

oper prevailed at the city level. But subsection (2) makes

clear that under these circumstances, the City is entitled

to fees. A necessary corollary is that a developer who

improves its position from the hearing examiner to the

city council can in some situations be considered to have

prevailed or substantially prevailed. If the City were

always the prevailing party at the council level, subsec-

tion (2) would not be necessary.

We conclude that the Stearnses have failed to carry

their burden of showing that the statute, as applied,

discriminates against land use applicants. Therefore, we

need not engage in further equal protection analysis.

2. Due Process/ First Amendment Right to Petition

The First Amendment includes the right to petition

the government for redress of grievances. The Stearnses

argue correctly that this right includes meaningful access

to the courts. In re Primus, 436 U.S. 412, 426, 98 S. Ct.

1893, 56 L.Ed.2d 417 (1978); California Motor Transport Co.

v. Trucking Unlimited, 404 U.S. 508, 510, 92 S. Ct. 609, 30

L.Ed.2d 642 (1972). Then the Stearnses argue that,

because RCW 4.84.370 permits an award of attorney’s

fees to the government as prevailing party in a land use

App. 10

case but not to an applicant, the statute denies due pro-

cess of law to applicants and impermissibly “chills” their

First Amendment rights.-As discussed above, this argu-

ment assumes a false premise - that an applicant can

never qualify for attorney’s fees as a prevailing party.

In any event, the statute does not keep an applicant

from obtaining meaningful judicial review of a land use

decision. The Stearnses went to superior court to chal-

lenge the City’s denial of their development permit. And

not all superior court decisions entitle the losing party to

higher judicial review. For instance, the Rules of Appel-

late Procedure allow only discretionary review of supe-

rior court decisions in cases originating in the courts of

limited jurisdiction. RAP 2.3(d). See City of Seattle v.

Hesler, 98 Wn.2d 73, 653 P.2d 631 (1982). Likewise, in most

cases, review by the Supreme Court is only at that court's

discretion. RAP 4.2.

Other statutes and court rules also permit an award

of attorney’s fees and costs against a party who pursues

an appeal beyond a certain level. See, e.g., MAR 7.3 (party

who appeals arbitration award and fails to improve posi-

tion is liable for reasonable attorney’s fees); RAP 18.9(a)

(sanctions for frivolous appeal); RCW 10.73.160 (appellate

costs, including fee for court-appointed counsel, assessed

against adult or juvenile criminal who does not prevail on

appeal).

And due process does not guarantee the right to

appeal. Ford Motor, 115 Wn.2d at 562. Rather, the State

may impose a risk of attorney’s fees beyond a certain

level in the judicial process where “the balance of state

and private interests favors the government scheme.”

a

App. 11

Ford Motor, 115 Wn.2d at 569 (citation omitted). Here, the

Legislature has determined that to discourage meritless

appeals, a party appealing a land use decision beyond the

superior court risks paying an opponent’s fees. Given the

strong presumption of constitutionality where a statute

regulating economic matters is challenged on equal pro-

tection or due process grounds, we hold that the balance

here favors the government scheme. RCW 4.84.370 does

not unconstitutionally deny access to the courts.

3. Separation of Powers

The gist of this argument is that by enacting this

attorney’s fee statute, the Legislature has burdened and

frustrated the judiciary’s power of judicial review

because only those who can afford the other side’s attor-

ney’s fees will appeal local land use decisions. This

ignores the longstanding rule in this state that a party can

recover attorney’s fees only when authorized by statute,

contract, or recognized ground in equity. And the Legisla-

ture has enacted many statutes that authorize the recov-

ery of attorney’s fees. This is a common legislative

function, not the province of the courts.

Moreover, the Stearnses have not demonstrated how

the statute affects the powers of the court. While the

statute may “chill” some cases in which the courts might

overturn the actions of local government, the Stearnses

have not cited a single case as to how this interferes with

the powers of the judiciary. In those cases that reach the

court, the court’s powers are unchanged.

App. 12

B. Conflict with 42 U.S.C. § 1983 and 42 U.S.C. § 1988

The Stearnses contend that RCW 4.84.370 conflicts

with, and is thus preempted by, 42 U.S.C. § 1983 and

§ 1988. These latter statutes provide a cause of action for

the violation of federal constitutional and statutory

rights, and for attorney’s fees to the prevailing party.

Because civil rights claims often accompany, or are part

of, land use petitions, the Stearnses contend that the

statutes conflict.

“Preemption may occur if (1) Congress passes a stat-

ute that expressly preempts state law, (2) Congress occu-

pies the entire field of regulations, or (3) state law

conflicts with federal law, making compliance with both

an impossibility or state law presents an obstacle to the

accomplishment of a federal purpose.” Stevedoring Servs.

of Am. v. Eggert, 129 Wn.2d 17, 23, 914 P.2d 737 (1996)

(citation omitted). The Stearnses have not claimed that

§ 1983 or § 1988 expressly preempts RCW 4.84.370, or that

Congress occupied the entire field of land use law.

Rather, the Stearnses’ claim that RCW 4.84.370 presents

an obstacle to the accomplishment of a federal purpose.

The Stearnses cite Felder v. Casey, 487 U.S. 131, 108 S.

Ct. 2302, 101 L. Ed. 2d 123, (1988), in which the United

States Supreme Court invalidated a statute requiring liti-

gants to file a claim against a local government before

3 Section 1983 and § 1988 will never apply in the same case

as RCW 4.84.370 because by definition the government would

have to lose litigation to be susceptible to attorney's fees under

§ 1988, while the government must win litigation to receive

attorney’s fees under RCW 4.84.370.

App. 13

litigating any claim against the government, including

§ 1983 claims. Litigants who did not file such a claim in

the proscribed time period were barred from filing suit.

Felder is distinguishable. There, the statute barred the

claim. Here, the statute does not bar an appeal past the

superior court; it only imposes fees on an appellant who

is unsuccessful for the third time.

The Stearnses contend that the “chilling effect” of

RCW 4.84.370 will deter people from bringing the takings

claims‘ that accompany land use petitions. This potential

“chilling effect” was of concern to the United States

Supreme Court when it limited the attorney’s fees defen-

dants could recover under § 1983 and § 1988 to those

suits where the plaintiff's claims were “frivolous, unrea-

sonable, or without foundation.” Hughes v. Rowe, 449 U.S.

5, 14, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980) (citing

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98

S. Ct. 694, 54 L. Ed. 2d 648 (1978)).

The Court held that:

“To take the further step of assessing attorneys

fees against plaintiffs simply because they do

not finally prevail would substantially add to

the risks inhering in most litigation and would

undercut the efforts of Congress to promote the

vigorous enforcement of the provisions of Title

VII.”

* A takings claim is a claim that the government has taken

private property for public use without paying just

compensation. U.S. Const., amend. V.

App. 14

Hughes, 449 U.S. at 14-15 (quoting Christiansburg Garment,

434 U.S. at 422).5

But a land use applicant is not required to join any

potential § 1983 and § 1988 claims with a petition to

review a governmental land use decision. Such claims

may be brought in a separate action not subject to the fees

provision of RCW 4.84.370. Further, even if the claims are

joined, RCW 4.84.370 authorizes an award of fees on

appeal only of a governmental “land use approval or

decision.” Thus, where a land use petition is joined with

§ 1983 or § 1988 claims, attorney’s fees can be awarded

under RCW 4.84.370 only for the land use portion of the

action.

In conclusion, the Stearnses have failed to show that

RCW 4.84.370 is unconstitutional as applied. The City is

entitled to reasonable attorney’s fees incurred after the

appeal from the superior court.®

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.

5 While Christiansburg dealt with Title VII of the Civil

Rights Act of 1964, the case citing it, Hughes v. Rowe, adopted the

same standard for § 1983 and § 1988, expressing identical

concerns. Hughes v. Rowe, 449 U.S. 5, 14-15, 101 S. Ct. 173, 66 L.

Ed. 2d 163 (1980).

© We have recently held that RCW 4.84.370 only provides

for an award of attorney’s fees incurred before the Court of

Appeals or the Supreme Court. Baker v. Tri Mountain, No.

20905-5-II (filed March 22, 1999).

App. 15

C. The § 1983 Claims

On the City’s motion, the trial court dismissed the

Stearnses’ claim for declaratory relief under § 1983. The

court also found the action frivolous and awarded attor-

ney’s fees to the City under 42 U.S.C. § 1988, RCW

4.84.185, and CR 11.

To establish a claim under § 1983, the Stearnses had

to show that the city (1) “violated a federal constitutional

or statutory right,” and (2) in doing so, the City was

“act[ing] under color of state law.” Kalmas v. Wagner, 133

Wn.2d 210, 215, 943 P.2d 1369 (1997) (citing Parratt v.

Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 68 L. Ed. 2d 420

(1981), overruled on other grounds by Daniels v. Williams,

474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986); Sintra,

Inc. v. City of Seattle, 119 Wn.2d 1, 11, 82 P.2d 765 (1992)).

As we have discussed, RCW 4.84.370 is constitutional. It

follows that the Stearnses’ § 1983 claim fails to the extent

that it was based upon the City’s use of an unconstitu-

tional statute. But the Stearnses also argue their § 1983

claim can be supported by the city’s use of a constitu-

tional statute in an improper manner, citing Greenwich

Citizens Comm., Inc. v. Counties of Warren and Wash. Indus.

Dev. Agency, 77 F.3d 26 (2nd Cir. 1996)

But we need not address the arguments because the

Stearnses have, with this opinion, received the relief they

sought. The Stearnses’ § 1983 claim asked for a declara-

tion that RCW 4.84.370 was unconstitutional and a decla-

ration of their rights under the statute. The Stearnses did

not ask for damages. We have held the statute constitu-

tional. And the Stearnses’ rights and duties under the

statute, within the context of this case, flow from our

App. 16

decision and the terms of the statute. In short, whether

the trial court erred in dismissing the action is of no

consequence. We have granted the Stearnses the relief

they sought.

D. Attorney’s Fees for Frivolous Claim

Whether a particular claim is frivolous lies within the

discretion of the trial court. But if the lawsuit is not

frivolous as a whole, attorney’s fees cannot be awarded

under RCW 4.84.185. Biggs v. Vail, 119 Wn.2d 129, 136, 830

P.2d 350 (1992). The substantive claims regarding the

constitutionality of RCW 4.84.370 were not found to be

frivolous, only the § 1983 claim based upon the City’s

motion to calculate fees under RCW 4.84.370. Therefore

the award of fees under RCW 4.84.185 was unwarranted.

Under CR 11:

A “ ‘pleading, motion or legal memorandum’

may be subject to CR 11 sanctions if it is both (1)

‘baseless’ and (2) signed without reasonable

inquiry.” A filing is “baseless” if (a) not well

grounded in fact, or (b) not warranted by (i)

existing law or (ii) a good faith argument for the

alteration of existing law.

Blair v. GIM Corp., Inc., 88 Wn. App. 475, 482-83, 945 P.2d

1149 (1997) (citations omitted).

Under § 1988, attorney’s fees can be awarded against

a plaintiff only if his claims are “frivolous, unreasonable,

or without foundation.” Hughes, 449 U.S. at 14 (citing

Christiansburg Garment, 434 U.S. at 422).

App. 17

The trial court, apparently viewing the Stearnses’

§ 1983 action as one for damages, dismissed the § 1983

action because the Stearnses had not shown that (1) the

City violated their constitutional rights, (2) the City’s

motion to calculate attorney’s fees was not a proximate

cause of injury to the Stearnses, and (3) the City was

immune from liability. We agree that the Stearnses failed

to show that the City violated a constitutional right, but

the remaining two reasons fail because the Stearnses were

not seeking damages. Rather, the Stearnses sought a dec-

laration of the rights and duties of the parties under

RCW 4.84.370. Whether the City’s motion was a proxi-

mate cause of damage to the Stearnses was simply not an

issue. Similarly, whether the City was immune from a

damage ciaim under § 1983 was not an issue. Thus, the

sole reason supporting dismissal of the § 1983 claim was

the Stearnses’ failure to show a violation of a constitu-

tional right. The trial court did not find this issue to be

frivolous and we agree. Tiger Oil Corp. v. Department of

Licensing, 88 Wn. App. 925, 938, 946 P.2d 1235 (1997) (“A

lawsuit is frivolous when it cannot be supported by any

rational argument on the law or facts.”) Accordingly, the

award of attorney’s fees against the Stearnses must be

reversed.

E. Parking Requirements

Turning to the merits of the underlying land use

appeal, the Stearnses contend that the City misapplied its

ordinances governing parking. The standard of review of

the interpretation of a statute under LUPA is apparently

“de novo under the contrary to law standard.” Freeburg v.

App. 18

City of Seattle, 71 Wn. App. 367, 371, 859 P.2d 610 (1993).”

RCW 36.70C.130, the statute governing “standards for

granting relief” under LUPA, provides that:

The court may grant relief only if the party

seeking relief has carried the burden of estab-

lishing that... .

(b) The land use decision is an erroneous

interpretation of the law, after allowing for such

deference as is due the construction of a law by

a local jurisdiction with expertise;

(d) The land use decision is a clearly erro-

neous application of the law to the facts.

RCW 36.70C.130(1)

Gig Harbor Municipal Code (GHMC)

§ 17.72.030(Q)(4), which governs general parking require-

ments for “marinas, moorages, and docks,” provides: “If

commercial or residential development is to be combined

with a watercraft usage requiring parking, the usage

which generates the larger number of spaces shall satisfy

the requirements of the other usage[.]”

The other relevant ordinance is the parking provision

specific to the Waterfront Millville zone in which the

proposed development is located. GHMC § 17.48.070,

7 The parties agree that this is the appropriate standard, but

the cases they cite deal with review under the old writ of cert

system. Freeburg v. City of Seattle, 71 Wn. App. 367, 371, 859 P.2d

610 (1993) and Hilltop Terrace Homeowner's Ass'n v. Island County,

126 Wn.2d 22, 29 n.3, 891 P.2d 29 (1995).

App. 19

provides: “Parking and loading facilities on private prop-

erty shall be provided in accordance with the require-

ments of Chapter 17.72 GHMC, except that where there are

properties serving multiple uses, parking shall be provided for

the combined total of the individual uses.” (Emphasis added.)

The Stearnses calculate the parking spaces required as:

Marina with Yacht club 41

Retail/professional complex 15

Duplex ee

House 2

TOTAL 62

Gig Harbor calculates the spaces as:8

Marina 41

Yacht Club 30

Retail/professional complex 15

Duplex: 4

House: .:

TOTAL 92

This dispute is whether the parking requirements

should be calculated under the general parking ordinance

for marinas (“commercial . . . development . . . combined

with a watercraft usage requiring parking”), which

would allow the parking for the marina to satisfy the

8 While these figures are taken from the Appellants’ brief,

the City and the Appellants agree on the method of determining

the number of spaces required for each separate structure or use

on the property. They disagree over whether the parking that

would be required for the Yacht Club under a “straight” square-

footage calculation can be rolled-into the existing Marina

parking under the GHMC.

App. 20

parking for the Yacht Club, or under the Waterfront Mill-

ville specific ordinance, which would require separate

parking for the Yacht Club.

The Stearnses contend that “the reference in GHMC

17.48.070 to multiple uses applies to situations where more

than one of the code defined uses set forth in GHMC

17.72.030(A) through (T) are served by a single property.”

The Stearnses then argue that the “marina combined with

commercial . . . development [Yacht Club]” is recognized

as an “individual use” in 17.72.030(Q)(4), and therefore

the proposed development does not comprise “multiple

uses” under GHMC 17.48.070.

The City counters that the term “multiple uses” in

GHMC 17.48.070 which is not defined elsewhere in the

code, has a plain meaning contrary to the Stearnses’

interpretation. A yacht club is not the same “use” as a

marina. And since the Waterfront Millville-specific ordi-

nance was passed at a later date than the earlier general

parking ordinance, GHMC 17.48.070 controls. See State v.

Landrum, 66 Wn. App. 791, 796, 832 P.2d 1359 (1992)

(“[W]hen two statutory provisions dealing with the same

subject matter are in conflict, the latest enacted provision

prevails when it is more specific than its predecessor.”)

We find the City’s interpretation persuasive. The

Stearnses have cited nothing in the Gig Harbor code to

show that the phrase “multiple uses” in GHMC 17.48.070

means only more than one of the “listed uses” from the

general parking calculation ordinance, GHMC 17.72.030.

Where there is no indication that this definition of “multi-

ple uses” was intended by the city council, the plain

meaning of the phrase controls, and a yacht club and

App. 21

marina are plainly separate, and thus multiple, uses.

Accordingly, the City’s calculation of the necessary park-

ing spaces is correct.

F. Conditional-Use Permit Subject to Conditions

Finally, the Stearnses contend that the city council

erred in reversing the hearing examiner’s grant of a con-

ditional-use permit subject to certain conditions.

The definition of a “conditional use” is “a use. . .

permitted only after . . . the granting of a conditional use

permit imposing such performance standards as will make

the use compatible with other uses in the same district.”

GHMC 17.04.260 (emphasis added). The Stearnses con-

tend that “imposing such performance standards” is syn-

onymous with “imposing conditions.” Further, the

Stearnses cite the chapter of the Gig Harbor Municipal

Code dealing with conditional uses, specifically the pro-

vision on “Procedure,” GHMC 17.64.020(C), which pro-

vides: “Granting or Denial. The decision may include

special restrictions or conditions deemed necessary or

desirable in furthering the intent of the ordinance per-

taining to the proposed development.” GHMC

17.64.020(C).

While this provision seems to explicitly provide for

granting conditional-use permits subject to conditions,

what the code gives with one provision it takes away

with the next.? Or more accurately, two provisions later,

9 The Stearnses cite only one case, State ex rel. Standard

Mining & Development Corp. v. City of Auburn, 82 Wn.2d 321, 510

P.2d 647 (1973). The case is cited for the proposition that

App. 22

in the section dealing with “Review Criteria,” GHMC

17.64.040 provides:

Each determination granting or denying a con-

ditional use permit shall be supported by writ-

ten findings of fact showing specifically wherein

all the following conditions are met:

D. That the site is of sufficient size to accom-

modate the proposed use and all yards, open

spaces, walls and fences, parking, loading, land-

scaping and other features as are required by

this title or as needed in the opinion of the

examiner.

GHMC 17.64-040(D).

Where general and specific laws address the same

subject matter, the specific law applies to the exclusion of

the general. Medical Consultants Northwest, Inc. v. State, 89

Wn. App. 39, 49, 947 P.2d 784 (1997), review denied, 136

Wn.2d 1002 (1998). Therefore, since the GHMC 17.64.040

requires specific findings that a site is of “sufficient size

to accommodate ... all . . . parking,” and the hearing

examiner found that “[t]he site, while large for the Water-

front Millville District is not of adequate size to accom-

modate code required parking for all the uses within the

“conditions can properly be imposed on conditional use

permits.” While the case does certainly indicate that an

administrative body has the inherent power to condition the

granting of conditional-use permits, nothing in the case stands

for the proposition that such inherent powers cannot be limited

through an express legislative act, as appears to have been done

by the Gig Harbor City Council in this case. See discussion

below.

App. 23

structure proposed,” the conditional-use permit could not

be issued with a condition relating to parking.

The city council properly reversed the hearing exam-

iner’s grant of the conditional use permit.

G. Comprehensive Plan; Height Requirements

The Stearnses maintain that the City failed to provide

sufficient factual findings and legal conclusions to allow

for meaningful judicial review of the two alternate

grounds for denial of the site plan: (1) that the site plan

did not meet criteria for “medium usage” so as to be

consistent with the comprehensive plan; and (2) that the

site plan did not provide public viewing amenities to

justify a departure from relevant height limitations in the

GHMC. Because we have held that the City properly

denied the Stearnses’ application because of inadequate

parking, we need not address these issues.

In conclusion, we affirm the trial court regarding the

substantive LUPA appeal and the constitutionality of

RCW 4.84.370, but we reverse the award of attorney’s fees

based upon a frivolous § 1983 claim.

/s/ Armstrong, J.

Armstrong. J.

We concur:

/s/ Bridgewater, C.J.

Bridgewater, C.J.

/s/ Hunt, J.

Hunt, J.,