# Opposition Brief — Stearns v. City of Gig Harbor

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1155

## Text

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
¢

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(which was later withdrawn) informing Stearns of the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.

¢

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.,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0492%3A3. Public record. Not legal advice.