Petition for Writ of Certiorari — Star Northwest, Inc. v. City of Kenmore, Washington (No. 08-1247)

Supreme Court, U.S.

FILED

ioe

f a

\i? Tins 081247 APRT - 2009

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

STAR NORTHWEST, INC., a Washington corporation d/b/a

Kenmore Lanes and 11'" Frame Restaurant & Lounge,

Petitioner,

Vv.

CITY OF KENMORE, a Washington municipal corporation,

and KENMORE CITY COUNCIL, the legislative body

of the City of Kenmore,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Patt J. DayTon

Counsel of Record

LESLIE C. CLARK

SHORT CRESSMAN & BuRGESS PLLC

999 Third Avenue, Suite 3000

Seattle, WA 98104

(206) 682-3333

Counsel for Petitioner

i

QUESTION PRESENTED

Star Northwest, Inc. d/b/a Kenmore Lanes and 11"

Frame Restaurant & Lounge (“Kenmore Lanes”)

operates a bowling alley, restaurant and card room in

Kenmore, King County, Washington that has done

business in Kenmore for more than 30 years. Its card

room, the sole card room in Kenmore, has been

continually licensed by the State of Washington since

1974. In December 2005, the Kenmore City Council

adopted an ordinance banning the operation of social

card rooms in the City of Kenmore. The ordinance did

not grant Kenmore Lanes any amortization period in

which it might recoup its capital investments by

permitting its operation as a nonconforming use.

Instead, it provided that the ordinance would become

effective in 10 days. The record below indicates that

without the revenues from the card rooim, the entire

business is not profitable and would be forced to close.

The district court and Ninth Circuit have rejected

Kenmore Lanes’ Fourteenth Amendment based

substantive due process challenge to the ordinance. The

question presented is

Whether the United States Court of Appeals for the

Ninth Circuit erred in concluding that the Kenmore,

Washington ordinance satisfied Fourteenth Amendment

substantive due process requirements, in direct conflict

with the Washington Supreme Court’s opinion that the

Fourteenth Amendment requires that when local

governments “terminate nonconforming uses . . . they

are constitutionally required to provide a reasonable

amortization period.” Rhod-A-Zalea v. Snohomish

County, 1386 Wash. 2d 1, 10, 959 P2d 1024, 1029 (1998)

(citation omitted).

ii

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

The caption contains the names of all parties to the

proceeding below.

Star Northwest, Inc., d/b/a Kenmore Lanes and 11"

Frame Restaurant & Lounge, a Washington corporation,

has no parent, and no publicly held company owns 10%

or more of the corporation’s stock.

iil

TABLE OF CONTENTS

Page

QUESTION PRESENTED .................. 1

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT ............0... ii

py OS hey i 9 ili

TABLE OF APPENDICES .................. Vv

TABLE OF CITED AUTHORITIES ......... vi

Co ee re ]

CONSTITUTIONAL PROVISION INVOLVED

STATEMENT OF THE CASE ............... 2

OO

eesnoeoeseeeeeveeeeeeveeeveveeeweeeeeeeeereeeeeeeeeet ee @ @

I. The Washington Supreme Court Has

Held that a Business Owner Has a Federal

Substantive Due Process Right to an

Amortization Period on Termination of a

Legal Nonconforming Use, and Its

Conclusion Is Consistent with Decisions

eR go ae 9

iv

Contents

Page

II. The Ninth Circuit Did Not Square Its

Federal Substantive Due Process

Analysis with the Decisions of the

Washington Supreme Court or Those of

Go Is Si ease neue keeecenes 16

III. The Ninth Circuit’s Rejection of Kenmore

Lanes’ Fourteenth Amendment Substantive

Due Process Clause Conflicts with this

Court’s Jurisprudence. ................ 18

en EE oe es cea ewe Fane Kes 24

TABLE OF APPENDICES

Appendix A — Amendment And Order Of The

United States Court Of Appeals For The Ninth

Circuit Denying Petition For Rehearing Filed

I ov i bsg ke v6 0 RRO SS AOR RE

Appendix B — Memorandum Of The United

States Court Of Appeals For The Ninth

Circuit Filed May 26, 2006 oo ccccisccccnces

Appendix C — Corrected Order On Motion For

Summary Judgment Of The United States

District Court For The Western District Of

Washington At Seattle Dated August 10, 2006

eoses@¢@oaeveeec eae Ceezpeoespeaeee see OQ@aetceaeeeeoe*ae taeewene 6 6666 66

Appendix D — City Of Kenmore, Washington

Ordinance Adopted December 19, 2005 .....

Page

vi

TABLE OF CITED AUTHORITIES

Page

Cases

Agins v. City of Tiburon,

447 U.S. 255 (1980) ...... Pe ee re 19

Armendanz v. Penman,

70 foe tek Coen UF, 1096) 2... ccc ccc cece 18

Austin v. Older,

283 Mich. 667, 278 N.W. 727 (1988) ......... 11

Bateson v. Geisse,

S57 F.2a 1300 (9th Cir. 1988) .............5. 22

City of Akron v. Chapman,

160 Ohio St. 382, 52 Ohio Op. 242,

fog SAL oe. ll

City of Seattle v. Martin,

54 Wash. 2d 541, 342 P2d 602 (1959) ........ 13

City of University Place v. McGuire,

144 Wash. 2d 640, 30 P3d 453 (2001) ........ 13

Commonwealth v. Hashem,

526 Pa. 199, 589 A.2d 1378 (1991) ........... 10

County of Sacramento v. Lewis,

ge Eg ee 19, 20, 21

vil

Cited Authorities

Page

Crown Point Dev., Inc. v. City of Sun Valley,

506 F.3d 851 (9th Cir. 2007) ................ 18

Del Monte Dunes at Monterey, Ltd.

v. City of Monterey,

920 F.2d 1496 (9th Cir, 1990) ..........0000- 21-22

Dent v. West Virginia,

SO Sees AE 5.5 64 ona bee ee eeea aes 19, 21

Dock Watch Hollow Quarry Pit, Inc.

v. Township of Warren,

142 N.J. Super. 103, 361 A.2d 12 (1976) ..... 14

Ebel v. City of Corona,

767 F.2d 635 (Oth Cir. 1985) .........ccccee, 1]

Goldblatt v. Town of Hempstead,

OW ads PAD hoa 6 ok on win sae kde seas 14

Grant v. Mayor and City Council of Baltimore,

212 Md. 301, 129 A.2d 363 (1957) .......... 11, 14

Griswold v. Connecticut,

Pe Bee Oe CR nv cee hese coer es evcties 21

Harris v. Mayor and City Council of Baltimore,

35 Md. App. 572, 371 A.2d 706 (1977) ....... 15

Hoffman v. Kinealy,

S89 S.W2d 745 (Mo. 1965) ........cccceees 1]

Vili

Cited Authorities

Page

Incorporated Village of Brookville

v. Paulgene Realty Corp.,

24 Misc. 2d 790, 200 N.Y.S.2d 126 (1960) .... 14

League to Save Lake Tahoe v. Crystal Enters.,

685 F.:2d 1142 (9th Cir. 1982) ............5.%. 11

Lee & Eastes v. Pub. Serv. Comm’n,

52 Wash. 2d 701, 328 P2d 700 (1958) ........ 12

Lingle v. Chevron U.S.A. Inc.,

644 U:S. 528 (2005) ..........4.. 16, 17, 18, 19, 20

Lucas v. S.C. Coastal Council,

Cte SE CEE) csc vecvcesnencers 12, 22, 23

Matter of Toys “R” Us. v. Silva,

89 N.Y.2d 411, 654 N.Y.S2d 100,

676 N.E. 2d 862, 865 (1996) ................ 15

Memphis Light, Gas & Water Div. v. Craft,

NE sie 10s beak be kx 23

Miller & Son Paving, Inc.

v. Wrightstown Township,

42 Pa. Commw. 458, 401 A.2d 392 (1979) ..... 14

N. Pacifica LLC v. City of Pacific,

626 F.3d 478 (9th Cir. 2008) ........ccccees 18-19

Ix

Cited Authorities

Page

Northend Cinema, Inc. v. City of Seattle,

90 Wash. 2d 709, 585 P2d 1153 (1978) ....... 1]

People v. Miller,

304 N.Y. 105, 106 N.E.2d 34 (1952) ......... 14

Rhod-A-Zalea v. Snohomish County,

136 Wash. 2d 1, 10, 959 P2d 1024 (1998) ... passam

Shanks v. Dressel,

540 F.3d 1082 (9th Cir. 2008) ............... 20

State ex. rel. Miller v. Cain,

40 Wash. 2d 216, 242 P2d 505 (1952) .... 11, 12,18

State ex rel. Ogden v. Bellevue,

45 Wash. 2d 492, 275 P2d 899 (1954) ........ 12

State v. Thomasson,

378 P2d 441 (Wash. 1963)............ 7, 11, 12, 2

Town of Castle Rock, Colorado v. Gonzales,

oGU.S. 748 GDG) 33 Sa. ss - Esorewnnas 22, 23

Township of Orion v. Weber,

83 Mich. App. 712, 269 N.W.2d 275 (1978) ... 14

Watanabe v. City of Phoenix,

140 Ariz. 575, 683 P2d 1177

Chris. C2. App. SRR) oss... bis. ate ie oe 14

Cited Authorities

Page

Wolff v. McDonnell,

CS Ct 7! ) 19

Wolverine Sign Works

v. City of Bloomfield Hills,

279 Mich. 205, 271 N.W. 823 (1987) ......... 14

Constitutional Provisions

Fourteenth Amendment to the

United States Constitution .............. passim

Statutes

MEAD gn icecectecdenaccccsecess l

Rules

Supreme Court Rule 10(a) ................... 9

a wea dks secu a ane ewes 6, 7

Other Authorities

1 Kenneth H. Young, Anderson’s American Law

of Zoning, § 6.04 at 489 (4th ed. 1995) ...... 10

4A Norman Williams Jr., American Land

Planning Law, at 225 (rev. vol. 1986) ...... 10, 11

SA McQuillin, Municipal Corporations, § 25.90

UE MED cick cae civcs cs suiseieecs 10

]

Petitioner Star Northwest, Inc. d/b/a Kenmore

Lanes and 11" Frame Restaurant & Lounge (“Kenmore

Lanes”) respectfully submits this Petition for a Writ of

Certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The Ninth Circuit issued a Memorandum decision

on May 28, 2008. Appendix (hereinafter “App.”), infra,

8a-12a. On Appellant’s Petition for Panel Rehearing, on

January 7, 2009, the panel issued an order amending

its May 28, 2008 Memorandum. App., infra, la-2a.

Neither the Memorandum nor the Order is published.

The judgment of the district court (App., infra, 13a-

23a) is not published. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the United States

Constitution provides in relevant part:

{[NJor shall any State deprive ahy person of

life, liberty, or property, without due process

of law.

2

STATEMENT OF THE CASE

Kenmore Lanes is a community-oriented business

featuring a bowling alley, restaurant, bar, and card room

in Kenmore, King County, Washington (the “City”). It is

the City’s largest private employer with approximately

220 full-time and part-time employees. Kenmore Lanes’

bowling alley has been in continuous operation at the

same location since 1958. Its 11° Frame card room has

been operating continuously under license from the

Washington State Gambling Commission at that location

since approximately 1974. No other card rooms operate

in the City.

Prior to acting to ban social card rooms, the City

was apparently not concerned with any impact of

gambling at Kenmore Lanes. It did not undertake any

investigation of the impact of card room operations in

the community. Nor were council members aware of any

evidence that card rooms had been the source of unusual

criminal activity in Kenmore or that they caused injury

to surrounding communities.

To the contrary, there is widespread community

acceptance of gambling in Kenmore, King County and

the state of Washington. State-authorized gambling

activities are ubiquitous in Kenmore, a city of more

than 18,000, and other King County communities.

Washington Lottery tickets and pull tabs are sold

throughout the City and across King County. Charitable

poker games in which participants take half the pot are

sponsored by local grocery stores. Card rooms operate

at 48 locations in King County.

3

In 2005, the City Council held hearings on the

question of whether it.would adopt a ban on social card

room operations in the City of Kenmore. The City

Council knew that banning card rooms would cause

financial injury to the owner of Kenmore Lanes, but did

not investigate whether closing the card room would

force closure of the bowling alley and the restaurant. It

did not investigate how many employees worked at

Kenmore Lanes and how many would lose their jobs if

card rooms were banned.

The City Council did know that it had the option of

banning all card rooms, but delaying the effective date.

Based on an email from the City Manager and a

statement by the City Attorney at a public meeting, the

City Council knew that the City Attorney had opined

that “the council could adopt a ban on card rooms

effective at a future date.” That strategy would, in effect,

give Kenmore Lanes an amortization period in which to

recoup the value of the business that would be lost. The

City Council did not do that.

At a December 19, 2005, Kenmore City Council

meeting, the City circulated a draft ordinance to ban

gambling. As circulated, the draft ordinance would have

allowed Kenmore Lanes to remain in business through

2006. The last sentence of Section 1 of the ordinance

stated this result as follows:

Nothing in this ordinance shall be construed

to prohibit the continued operation of any

licensed social card game during the

remainder of the current term of any license

issued by the State Gambling Commission for

any such social card game.

4

The then-current term of Kenmore Lanes’ card

room license ran through December 31, 2006. Thus, as

recommended to the Kenmore City Council, the draft

ordinance gave Kenmore Lanes (and the employees) 2

year’s notice of the intended closing.

After closing the public hearing on the draft

ordinance to ban gambling at the December 19, 2005

meeting, one of the council members moved to delete

the last sentence of Section 1, intentionally denying

Kenmore Lanes its right to operate for the duration of

its current license. The motion passed and modified

Section 1 of the ordinance as follows:

Pursuant to RCW 9.46.295, “social card

games,” as that term is defined in RCW

9.46.0282 as now in effect or may subsequently

be amended, are prohibited within the City of

Kenmore. Social card games shall not be

permitted, maintained or operated as a

commercial stimulant for the operation of any

business primarily engaged in the selling of

food or drink for consumption on the

premises, nor for any other reason or under

any other circumstances. Nothing in this

ordinance shall be construed to otherwise

change the scope of any current license issued

by the State Gambling Commission. Nethitge

in-this-ordinance-shatt be construed to

5

The City Attorney stated that the ordinance, as

amended, could be interpreted to mean that the City

Council’s action violated state law which prohibits cities

from changing the scope of an issued license, and

suggested further analysis. With little discussion, the

City Council adopted Ordinance No. 05-0237, as

amended (the “Ordinance”). App., onfra, 24a-31a.

The record is devoid of any explanation of the

reasons the City Council took to ban all card rooms

because the Ordinance states no purpose and the City

objected to deposition testimony from council members

about their decision-making process. The Ordinance

provides no relief and no amortization period for

Kenmore Lanes’ existing, licensed card room. The

Ordinance was scheduled to become effective on

December 29, 2005, 10 days after the December 19"

meeting. App., infra, 30a, 31a.

The profits from the card room subsidize Kenmore

Lanes’ bowling alley, the restaurant, the employee

benefits, and all of Kenmore Lanes’ community and

charitable activities. If the card room must close, then

the entire business will close. Relocation of Kenmore

Lanes’ card room, restaurant, and bowling alley to a

different location would cost more than the business is

worth. There are no viable locations in King County for

a new card room. Even if a location could be found, the

costs of moving the business and the delay in rebuilding

goodwill make relocation impracticable. This means that

if the Ordinance is enforced, Kenmore Lanes will close,

and Kenmore Lanes will lose the entire value of its

investment, calculated at $4,936,000, as of December 31,

2005.

6

Before the Ordinance became effective, Kenmore

Lanes filed suit against the City of Kenmore and

Kenmore City Council (collectively the “City”) in the

United States District Court for the Western District

of Washington seeking injunctive relief and damages,

and alleging, in part, that the Ordinance violated its

Fourteenth Amendment right to substantive due

process and entitled Kenmore Lanes to relief under

42 U.S.C. § 1983. On December 28, 2005, the district

court granted Kenmore Lanes’ motion for temporary

restraining order. In March 2006, the temporary

restraining order was ccntinued as a preliminary

injunction pending trial pursuant to stipulation of the

parties.

On August 10, 2006, the district court granted

summary judgment dismissing Kenmore Lanes’ federal

claims. App., infra, 13a-23a. It reasoned that Kenmore

Lanes did not have a property right supporting a

Fourteenth Amendment claim because state licensed

gambling is “vice”-like and has no constitutional

protection, and Kenmore Lanes had no “vested right”

to operate a card room based on a Washington

Administrative Code provision, WAC 230-04-175.

App., znfra, 17a.

Kenmore Lanes timely appealed and asked the

United States Court of Appeals for the Ninth Circuit to

issue a Stay preventing enforcement of the Ordinance

during the appeal. On September 28, 2006, the Ninth

Circuit granted the motion for stay. Based on that stay,

Kenmore Lanes and its card room remains open to this

day.

7

In a May 28, 2008 Memorandum (App., infra, 3a-

12a), the Ninth Circuit affirmed the district court’s

ruling, but with somewhat different reasoning. The

Ninth Circuit accepted for the purpose of analysis

that Kenmore Lanes’ card room “qualifies as a

nonconforming use within the meaning of [Kenmore]

Municipal Code § 18.20.1860.” App., infra, 5a. It also

recognized that “Washington courts have recognized a

federal] constitutional right, under the Fourteenth

Amendment substantive due process guarantee, to a

reasonable amortization period for nonconforming uses

terminated by state or local regulation. See State v.

Thomasson, 378 P2d 441, 443 (Wash. 1963); Rhod-A-

Zalea v. Snohomish County, 959 P2d at 1029.” App.,

infra, 6a. The Ninth Circuit rejected Kenmore Lanes’

federal substantive due process claim, however,

reasoning that “[tjhose nonconforming uses that are not

vested rights under Washington law, however, are not

entitled to the benefit of an amortization period” and

“luJnder Washington law, a gambling license cannot

create a vested right.” App., infra, 6a-7a. The Ninth

Circuit said nothing about the district court’s “vice”-

like exception to constitutional rights.

The Ninth Circuit’s conclusion that under

Washington law a gambling license cannot create a

vested right was anchored in WAC 230-04-175, which

provided that “the issuance of any license by [the state

gambling] commission shall not be construed as granting

a vested right in any of the privileges so conferred.”

This was error because WAC 230-04-175 had been

repealed in January 2008, prior to the Ninth Circuit

decision, and could not undermine Kenmore Lanes’ claim

to a property right. Kenmore Lanes explained this to

8

the Ninth Circuit in a timely motion for panel rehearing,

filed June 9, 2008.

In an order issued on January 7, 2009 (App., infra,

la-2a), the Ninth Circuit panel amended its prior

Memorandum, deleting its entire analysis of Kenmore

Lanes’ federal substantive due process claim and

reliance on the repealed WAC provision in Section 2 of

its Memorandum and substituted a new Section 2. App.,

infra, 2a. In its revised analysis, the Ninth Circuit

ignored the Fourteenth Amendment substantive

due process right to an amortization period for

nonconforming uses terminated by state or local

regulation recognized by the Washington Supreme

Court that it had noted in the May 28, 2008,

Memorandum and stated merely that Kenmore Lanes

had failed to meet the “exceedingly high burden of

proving that a challenged land use regulation fails to

advance a legitimate government purpose.” App., infra,

2a. The Ninth Circuit did not attempt to reconcile its

conclusion with the Washington Supreme Court opinions

that it had cited in its earlier Memorandum.

REASONS FOR GRANTING THE PETITION

The Ninth Circuit has differed, without explanation,

from clear contrary decisions from the Washington

Supreme Court, applying federal substantive due

process principles to property rights recognized under

Washington state law and requiring that legal

nonconforming uses may not be terminated without

allowing an adequate amortization period. The

Washington Supreme Court decisions are not outliers

on this question. Many state appellate courts have

reached the same conclusion under either substantive

due process or takings principles. The split between the

Ninth Circuit and the state courts presents the

important question whether governments are free to

ban legal nonconforming uses without any amortization

period to allow the business owner to recoup its

investment or mitigate its loss. Thus, this Court’s Rule

10(a) is satisfied, and a Writ of Certiorari should issue.

I.

9

The Washington Supreme Court Has Held that a

Business Owner Has a Federal Substantive Due

Process Right to an Amortization Period on

Termination of a Legal Nonconforming Use, and

Its Conclusion Is Consistent with Decisions of

Many Other States.

The Ninth Circuit’s May 28, 2008 Memorandum,

accurately summarized applicable Washington law:

It is well established under Washington law

that the City may regulate a non-conforming

use with “subsequently enacted reasonable

police power regulations.” Rhod-A-Zalea &

35", Inc. v. Snohomish County, 959 P.2d

1024,1029 (Wash. 1998). The City is not

required to allow a nonconforming use to exist

indefinitely because “local governments have

the authority to preserve, regulate and even,

within constitutional limitations, terminate

nonconforming uses.” * * *

2. Washington courts have recognized a

federal constitutional right, under the

Fourteenth Amendment’s’ substantive

10

due process guarantee, to a reasonable

amortization period for nonconforming uses

terminated by state or local regulation. See

State v. Thomasson, 378 P2d 441, 443 (Wash.

1963); Rhod-A-Zalea, 959 P2d at 1029.

App., infra, 6a. This substantive due process analysis

is anchored in the Washington Supreme Court’s state

law-based judgment that termination of a legal existing

use impairs a property interest.

When zoning laws were first enacted in the United

States in the early Twentieth Century, states wrestled

with how existing uses should be treated that did not

comply with uses allowed in the new zoning

designations.' There was a widespread belief that such

nonconforming uses could not be terminated unless after

a period of abandonment.” Over time, states continued

to struggle with the issue because a nonconforming use’s

“grandfathered” status often created a local monopoly

power which discouraged the business from ceasing

operations.® While some states still forbade the forced

termination of a legal business,* eventually many states

1. 4A Norman Williams Jr., American Land Planning Law,

at 225 (rev. vol. 1986) (the issue of nonconforming uses has been

“one of the most important questions in American planning

law”).

2. See 1 Kenneth H. Young, Anderson’s American Law of

Zoning, § 6.04 at 489 (4th ed. 1995).

3. 8A MeQuillin, Municipal Corporations, § 25.90 at 73 (3d

ed. 2003).

4. See,e.g., Commonwealth v. Hashem, 526 Pa. 199, 589 A.2d

1378 (1991) (amortization of a pre-existing use is per se

(Cont'd)

11

came to a compromise position: nonconforming uses

could not be immediately abolished but could be

terminated after a phasing out, or “amortization”

period.® Washington, like many states, grounds this right

to a pre-cessation amortization period in the Fourteenth

Amendment.°

There is no federal law of zoning so federal courts

must look to state law. League to Save Lake Tahoe v.

Crystal Enters., 685 F.2d 1142, 1144 (9th Cir. 1982); see

also Ebel v. City of Corona, 767 F.2d 635, 639 (9th Cir.

1985) (applying balancing test from Northend Cinema,

Inc., v. City of Seattle, 90 Wash. 2d 709, 585 P2d 1158,

1159-60 (1978)). They also look to state law to “define

and determine the range of interests that qualify for

(Cont'd)

confiscatory); Hoffman v. Kinealy, 389 S.W.2d 745 (Mo. 1965)

(six-year amortization period was unconstitutional as a taking

of private property for public use without just compensation);

City of Akron v. Chapman, 160 Ohio St. 382, 52 Ohio Op. 242, 116

N.E.2d 697 (1953) (an ordinance allowing a city to remove a

legal nonconforming use even after a “reasonable” time was

unconstitutional).

5. 4A Norman Williams Jr., American Land Planning Law,

at 225 (rev. vol. 1986); see also League to Save Lake Tahoe v.

Crystal Enters., 685 F.2d 1142, 1146 (Yth Cir. 1982).

6. See, e.g., State v. Thomasson, 61 Wash. 2d 425, 428, 378

P2d 441, 443 (1963) (due process grounds); State ex. rel. Miller

v. Cain, 40 Wash. 2d 216, 218, 242 P2d 505, 506 (1952); Compare,

Austin v. Older, 283 Mich. 667, 278 N.W. 727, 730 (1938). And see

Grant v. Mayor and City Council of Baltimore, 212 Md.

301, 308, 129 A.2d 363 (1957) (“{I]t is unreasonable and

unconstitutional for a zoning law to require immediate cessation

of nonconforming uses otherwise lawful”) (surveying cases).

12

protection as property” under the Fifth and Fourteenth

Amendments. Lucas v. S.C. Coastal Council, 505 U.S.

1003, 1030 (1992). The Washington Supreme Court has

consistently held that property owners have rights to

continue to operate a legitimate business despite a

change in zoning. State v. Thomasson, 61 Wash. 2d 425,

428, 378 P2d 441, 443 (1963); State ex rel. Ogden v.

Bellevue, 45 Wash. 2d 492, 495, 275 P2d 899, 901-02

(1954); State ex rel. Miller v. Cain, 40 Wash. 2d 216, 218,

242 P2d 505, 506 (1952). This is consistent with the

Washington courts’ recognition that a business like

Kenmore Lanes’ card room is a valuable property

interest:

Property is a word of very broad meaning and

when used without qualification may reasonably

be construed to include obligations, rights and

other intangibles as well as physical things. And

property is a term of broad significance,

embracing everything that has exchangeable

value, and every interest or estate which the

law regards of sufficient value for judicial

recognition. The right to operate a lawful

business is a property right.

Lee & Hastes v. Pub. Serv. Comm’n, 52 Wash. 2d 701,

704, 328 P2d 700, 702 (1958) (internal citations omitted)

(emphasis added).

Applying this property right, Washington allows a

nonconforming use to be terminated, but it cannot be

constitutionally done without providing for a reasonable

amortization period. Rhod-A-Zalea, 959 P2d at 1029

(“Loeal governments, of course, can terminate

13

nonconforming uses but they are constitutionally

required to provide a reasonable amortization period”).

Moreover, this right is not balanced against the goals of

government regulation. It will be allowed to continue

even though the use is considered to be “detrimental to

important public interests.” Jd. at 1027. The harm from

depriving a property owner of his business outweighs

the public interest in immediately abolishing the

nonconforming use. /d. (noting that although a

nonconforming use may be detrimental to the public

health, safety, morals, or welfare, it cannot be

immediately ceased without infringing on the property

owner’s constitutionally-protected rights); see also City

of University Place v. McGuire, 144 Wash. 2d 640, 648-

49, 30 P3d 453, 457 (2001); City of Seattle v. Martin, 54

Wash. 2d 541, 544, 342 P2d 602, 603-04 (1959); Miller,

242 P2d at 508 (a nonconforming gasoline service station

use was allowed to continue indefinitely where the harm

to the property owner in losing the business outweighed

the public’s interest in terminating the use).

Neither the City of Kenmore, nor the district court

nor the Ninth Circuit has attempted to argue that the

Washington Supreme Court incorrectly applied federal

constitutional law to termination of a legal

nonconforming use. To the contrary, decisions of other

states are consistent with Washington's explication of

federal constitutional law.

The Washington cases, themselves, cited extensively

this Court and to decisions of other states. In concluding

that nonconforming uses were subject to later-enacted

regulations enacted for the health, safetv and welfare

of the community, the Washington Supreme Court in

14

Rhod-A-Zalea cited Goldblatt v. Town of Hempstead,

369 U.S. 590 (1962); Miller & Son Paving, Inc. v.

Wrightstown Township, 42 Pa. Commw. 458, 401 A.2d

392 (1979); Watanabe v. City of Phoenix, 140 Ariz. 575,

683 P2d 1177 (Ariz. Ct. App. 1984); and Dock Watch

Hollow Quarry Pit, Inc. v. Township of Warren, 142

N.J. Super. 103, 361 A.2d 12 (1976). 959 P2d at 1029.

And, its conclusion that an ordinance immediately

terminating a nonconforming use is invalid cited to

Township of Orion v. Weber, 83 Mich. App. 712, 269

N.W.2d 275 (1978), and Incorporated Village of

Brookville v. Paulgene Realty Corp., 24 Misc. 2d 790,

200 N.Y.S.2d 126 (1960). 7d.

In Township of Orion, the court surveyed decisions

of the Michigan Supreme Court, e.g. Wolverine Sign

Works v. City of Bloomfield Hills, 279 Mich. 205, 271

N.W. 828 (1937), holding that immediate termination of

existing legal uses is arbitrary and illegal, and

invalidated new restrictions on an existing sand and

gravel operation as confiscatory. 269 N.W.2d at 280.

In Paulgene Realty, the court surveyed prior

decisions of the New York courts holding that a legal

nonconforming use may not be subsequently terminated,

e.g. People v. Miller, 304 N.Y. 105, 107, 106 N.E.2d 34

(1952), and refused to apply subsequently adopted police

power-based regulations to a legal existing use. 24 Misc.

2d at 795, 795.

Other states have reached the same conclusion. In

Grant v. Mayor and City Council of Baltimore, the

Maryland Court of Appeals surveyed cases analyzing

15

the constitutional implications of termination of a legal

nonconforming use and concluded:

It soon was and still generally is held that it is

unreasonable and unconstitutional for a

zoning law to require immediate cessation of

nonconforming uses otherwise lawful. Anne

Arundel County v. Snyder, 186 Md. 342, 346;

Amereihn v. Kotras, 194 Md. 591, 601 and

cases cited; Jones v. City of Los Angeles (Cal.),

295 P 14; Standard Oil Co. v. City of Bowling

Green (KY.), 50 S.W. 2d 960; Des Jardin v.

Town of Greenfield (Wis.), 53 N.W. 2d 784.

212 Md. at 308.’ See also Matter of Toys “R” Us. v. Silva,

89 N.Y.2d 411, 416, 654 N.Y.S2d 100, 108, 676 N.E. 2d

862, 865 (1996) (nonconforming uses cannot be

summarily terminated “{d]ue to constitutional and

fairness concerns regarding the undue financial

hardship that immediate elimination of nonconforming

uses would cause to property owners”).

7. Grant has been followed and reaffirmed in multiple

Maryland decisions. Harris v. Mayor and City Council of

Baltimore, 35 Md. App. 572, 578, 371 A.2d 706 (1977).

16

II. The Ninth Circuit Did Not Square Its Federal

Substantive Due Process Analysis with the

Decisions of the Washington Supreme Court or

Those of Other States.

After recognizing the Washington Supreme Court’s

articulation of the federal substantive due process right

to an amortization period in its May 28, 2008

Memorandum, the Ninth Circuit switched course in its

January 7, 2009 order on petition for rehearing to delete

its discussion of the Washington cases and substitute

citations to federal decisions—cases that pre-dated its

May 28, 2008 Memorandum. App., infra, 2a.

The Ninth Circuit now cited Lingle v. Chevron

U.S.A. Inc., 544 U.S. 528, 542 (2005), for the proposition

that “[a]} plaintiff challenging land use regulation under

a federal substantive due process theory must

demonstrate that the regulation ‘fails to serve any

legitimate governmental objective’ rendering it

‘arbitrary or irrational.’” App., infra, 2a. The Ninth

Circuit did not explain why Kenmore Lanes’ challenge

did not meet that standard; it may be reasonably

inferred that the City’s unstated, but apparent, purpose

of ending card room operations was regarded as serving

a legitimate government objective.

The panel’s reading of Lingle is plainly inconsistent

with the Washington Supreme Court decisions

describing a federal substantive due process right to

an amortization period on termination of a legal

nonconforming use and similar decisions in other states.

The Washington Supreme Court was satisfied that

regardless of the legitimacy of the local government's

17

purpose, termination of a legal nonconforming use

triggered a constitutional right to a reasonable

amortization period. The Court explained that

nonconforming uses are subject to subsequently enacted

reasonable police power regulations and such

regulations will only be invalidated when they

immediately terminate the use. This is because “a

nonconforming use has a ‘vested’ or ‘protected’ right

to continue without being subject to immediate

termination.” Rhod-A-Zalea, 959 P2d at 1027. Thus, the

Washington Supreme Court held that an ordinance

immediately terminating a legal nonconforming was a

substantive due process violation regardless of the

reasonableness of the City’s purpose.

Kenmore Lanes will explain below that the Ninth

Circuit’s reading of Lingle is incorrect, and the

substantive due process standard is satisfied here

because arbitrariness or irrationality of government

action can be proved through the rejection of an

amortization period, not merely the apparent goal of the

government action. For the purposes of judging whether

a Writ of Certiorari should issue, however, the split

between the Ninth Cireuit and the Washington Supreme

Court is clear.

18

III. The Ninth Circuit’s Rejection of Kenmore Lanes’

Fourteenth Amendment Substantive Due

Process Clause Conflicts with this Court’s

Jurisprudence.

In Lingle, this Court clarified the dividing line

between Fifth Amendment takings clause claims and

Fourteenth Amendment substantive due process claims,

explaining that a takings clause challenge “presupposes

that the government has acted in pursuit of a valid public

purpose,” whereas a substantive due process claim

seeking invalidation of an allegedly arbitrary regulation

is “logically prior and distinct from the question whether

a regulation effects a taking.” Lingle, 544 U.S. at 543.

The Court explained that “[n]o amount of compensation

can authorize” an arbitrary government action. /d.

See also id. at 548 (“today’s decision does not foreclose

the possibility that a regulation might be so arbitrary

or irrational as to violate due process”) (Kennedy, J.,

concurring).

The Court’s observation in Lingle that arbitrary or

irrational regulations may be invalidated as violative of

the Fourteenth Amendment due process clause led

panels of the Ninth Circuit to resurrect substantive due

process claims for property deprivations. “Lingle pulls

the rug out from under [the Ninth Circuit’s] rationale

for totally precluding substantive due process claims

based on arbitrary or unreasonable conduct ... and

indicates that a claim of arbitrary action is not [a claim

precluded by the Fifth Amendment takings clause].”

Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d

851, 855 (9th Cir. 2007) (limiting Armendariz v. Penman,

75 F.3d 1311 (9th Cir. 1996)). See also N. Pacifica LLC

19

v. City of Pacific, 526 F.3d 478, 484 (9th Cir. 2008) (“In

recent years, substantive due process law in the context

of land-use regulation has taken a winding path”) (citing

Lingle, 544 U.S. at 542) (other citations omitted).

In explaining that the Agins “substantially

advance[s] legitimate state interests” standard is not

relevant to a Fifth Amendment taking, Lingle, 544 U.S.

at 531-32 (citing Agins v. City of Tiburon, 447 U.S. 255

(1980)), the Court commented that the “substantially

advances” test has “some logic in the context of a due

process challenge.” /d. at 542. In this reference to

substantive due process considerations, the Court did

not purport to set forth, or to alter, the applicable test

in a substantive due process challenge. See id.

Nevertheless, the Ninth Circuit apparently read this

language to state a standard that government action

will satisfy substantive due process standards if the

government has a reasonable goal, no matter how

arbitrarily it acts in furtherance of that goal. This gives

short shrift to the Court’s substantive due process cases

and the state cases giving constitutional protection to

termination of nonconforming uses.

This Court has “emphasized time and again that ‘the

touchstone of due process is protection of the individual

against arbitrary action of government.’” County of

Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (cited by

Lingle, 544 U.S. at 542). See also Wolff v. McDonnell,

418 U.S. 539, 558 (1974) (“The touchstone of due process

is protection of the individual against arbitrary action

of government, Dent v. West Virginia, 129 U.S. 114, 123

(1889)”). In the substantive context of the due process

20

clause, protection against arbitrary government action

means that government power must not be exercised

“without any reasonable justification in the service of a

legitimate governmental objective.” Lewis, 523 U.S. at

846 (citation omitted).

The Ninth Circuit’s decision below failed to analyze

whether the City had a reasonable justification for the

immediate impact of the Ordinance on Kenmore Lanes.

After appropriately quoting Lingle for the proposition

that a government act is invalid if it “fails to serve any

legitimate governmental objective,” App., 77/fra, 2a, the

Ninth Circuit made no attempt to apply that standard

to assess whether the City had a legitimate government

objective for a regulation that would close Kenmore

Lanes’ business immediately, without any opportunity

to recoup its investment.

Rather than offering any analysis, the Ninth Circuit

cited a second decision, this one from the Ninth Circuit;

Shanks v. Dressel, 540 F-3d 1082, 1028 (9th Cir. 2008)

(challenging the issuance of a building permit within a

historic district). App., 7rfra, 2a. The Ninth Circuit did

not acknowledge that the challenge in Shanks concerned

an executive action not a legislative one. 540 F.3d at 1088

(“When executive action like a discrete permitting

decision is at issue, only ‘egregious official conduct can

be said to be arbitrary in the constitutional sense’”).°

8. The Lewis Court explained that the analysis of whether

an act is arbitrary differs for legislative actions as opposed to

executive actions:

While due process protection in the substantive

sense limits what the government may do in both

(Cont'd

21

In contrast to the necessary showiug of “conscience

shocking” behavior that must be proved for an executive

action to have violated substantive due process

guarantees, Lewis, 523 U.S. at 846, a claim that a

legislative action violated due process may be proved

by a showing that the action complained of has caused

an arbitrary or irrational impact. Cf Dent, 129 U.S. at

121-22, 128 (declaring more than 100 years ago that the

right to follow any lawful calling, business, or profession

“cannot be arbitrarily taken from [persons], any more

than their real or personal property can be thus taken”

and only finding no substantive due process violation

because the legislation at issue set vital minimum skill

thresholds for the practice of medicine). See also

Griswold v. Connecticut, 381 U.S. 479, 485 (1965)

(legislation banning birth control measures had an

unreasonable impact on marital privacy rights).

Likewise, the Ninth Circuit has, on other occasions,

recognized that an unjustified denial of a right is an

unreasonable impact subject to invalidation. See, e.g.,

Del Monte Dunes at Monterey, Ltd. v. City of Monterey,

(Cont'd)

its legislative ...and its executive capacities ...

criteria to identify what is fatally arbitrary differ

depending on whether it is legislation or « :necific

act of a governmental officer that is at iss.

Lewis, 523 U.S. at 846 (emphasis added) (internal citations

omitted). Lewis, itself, concerned executive action, not

legislative. Lewis described the long-standing and extremely

high standard for invalidating executive action under the due

process clause: “[F Jor half a century now we have spoken of the

cognizable level of executive abuse of power as that which shocks

the conscience.” Id. (emphasis added).

22

920 F.2d 1496, 1508 (9th Cir. 1990) (reversing summary

judgment in favor of defendant city when the city council

had “abruptly changed course and rejected [a land use

permit application], giving only broad conclusory

reasons”); See also Bateson v. Geisse, 857 F.2d 1300, 1303

(9th Cir. 1988) (refusal to issue building permits afforded

applicant no “process, let alone ‘due’ process,”

amounting to a substantive due process violation).

The Fourteenth Amendment does not itself create

rights that are protected from unreasonable impacts of

legislative action. Town of Castle Rock, Colorado

v. Gonzales, 545 U.S. 748, 756 (2005). Rather,

“entitlements are created and their dimensions are

defined by existing rules or understandings that stem

from an independent source such as state law.” Jd.

(citations omitted). See also Lucas, 505 U.S. at 1030

(same) (citations omitted). The question of whether a

state law-created property interest creates a claim of

entitlement protected by the due process clause “begins

with a determination of what it is that state law

provides.” Castle Rock, 545 U.S. at 757 (declining to

defer to the Tenth Circuit’s construction of state law

because that court “did not draw upon a deep well of

State-specific expertise”). As explained above,

Washington has long-recognized a property right in the

operation of a business, subject to protection under the

Fourteenth Amendment from termination without a

reasonable amortization period. Rhod-A-Zalea, 959 P2d

at 1029; Thomasson, 378 P3d at 443. The Ninth Circuit

accepted that nonconforming uses constitute

protectable property interests in Washington but failed

to explain its departure from Washington’s

interpretation that the Fourteenth Amendment

protected such rights from summary termination.

23

Where state law has established a clear right, as

Washington has here, this Court has considered

summary termination of that right to constitute a due

process violation. See, e.g., Memphis Light, Gas & Water

Div. v. Craft, 486 U.S. 1, 11-12 (1978) (cited in Castle

Rock, 545 U.S. at 757 (water customers who had a state

law-created right to water service which could only be

terminated for cause asserted a “legitimate claim for

entitlement’ within the protection of the Due Process

Clause”). In such circumstances, summary deprivation

of the right is arbitrary regardless of the reason. Here,

the Ninth Circuit’s withdrawal of the portion of its May

28, 2008 Memorandum “look[ing] to state law to ‘define

and determine the range of interests that qualify for

protection as property’” (App. infra, 7a (citing Lucas,

505 U.S. at 1030)), meant that its substituted conclusion

that Kenmore Lanes had not met an “exceedingly high

burden” was offered without any analysis of the

underlying right at issue or of the application of

Fourteenth Amendment protections to that right. The

record is devoid of any rational reason for summarily

terminating Kenmore Lanes, and there is ample

evidence that the City Council’s decision to make its ban

effective in 10 days was arbitrary and irrational.

This Court’s resuscitation of the Fourteenth

Amendment’s due process clause as a means of

challenging land use regulations signaled the Court’s

interest in clarifying the constitutional challenges

available in land use regulation contexts. Having

reopened the due process door, this Court should grant

certiorari to consider the Ninth Circuit’s unreasoned

rejection of Kenmore Lanes’ Fourteenth Amendment

amortization period claim which is in conflict with

decisions of the Washington Supreme Court.

24

CONCLUSION

For the reasons stated above a Writ of Certiorari

should issue.

Respectfully submitted,

Pau. J. Dayton

Counsel of Record

LESLIE C, CLARK

SHorT CRESSMAN & BurGEss PLLC

999 Third Avenue, Suite 3000

Seattle, WA 98104

(206) 682-3333

Counsel for Petitioner

APPENDIX

la

APPENDIX A — AMENDMENT AND ORDER OF

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT DENYING PETITION FOR

REHEARING FILED JANUARY 7, 2009

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 06-35801

STAR NORTHWEST INC., a Washington

corporation doing business as Kenmore Lanes

and 11th Frame Casino,

Plaintiff-Appellant,

Vz

CITY OF KENMORE, a Washington

municipal corporation; et al.,

Defendants-Appellees.

No. 06-36029

STAR NORTHWEST INC., a Washington

corporation doing business as Kenmore Lanes

and 11th Frame Casino,

Plaintiff-Appellant,

V.

City of Kenmore, a Washington

municipal corporation; et al.,

Defendants-Appellees.

2a

Appendix A

ORDER

Before: B. FLETCHER, PAEZ and N.R. SMITH, Circuit

Judges.

The memorandum filed on May 28, 2008 is amended

as follows: On pages 4 through 5, delete Section 2 and

replace it with the following paragraph:

2. Kenmore Lanes argues that the City violated

its Fourteenth Amendment right to substantive

due process by failing to provide a reasonable

amortization period for nonconforming uses

banned by Ordinance. We disagree. A plaintiff

challenging land use regulation under a federal

substantive due process theory must

demonstrate that the regulation “fails to serve

any legitimate governmental objective,”

rendering it “arbitrary or irrational.” Lingle v.

Chevron U.S.A. Inc., 544 U.S. 528, 542 (2005);

see also Shanks v.. Dressel, 540 F.3d 1082, 1088

(9th Cir.2008) (“T]he ‘irreducible minimum’ of

a substantive due process claim challenging land

use action is failure to advance any legitimate

government purpose.” (citation omitted)).

Kenmore Lanes has not met this “exceedingly

high burden” here, and dismissal of this claim

was therefore proper. See Shanks, 540 F.3d at

L088.

With the above amendment, the panel has voted to

deny the petition for rehearing. The petition for panel

rehearing is therefore DENIED. No further petitions for

rehearing shall be filed.

3a

APPENDIX B — MEMORANDUM OF THE UNITED

STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT FILED MAY 28, 2008

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 06-35801

STAR NORTHWEST INC., a Washington

corporation doing business as Kenmore Lanes

and 11th Frame Casino,

Plaintiff-Appellant

V.

CITY OF KENMORE, a Washington municipal

corporation; KENMORE CITY COUNCIL, the

legislative body of the City of Kenmore,

Defendants-Appellees

No. 06-36029

STAR NORTHWEST INC., a Washington

corporation doing business as Kenmore Lanes

and 11th Frame Casino,

Plaintiff-Appellant,

v.

CITY OF KENMORE, a Washington municipal

corporation; KENMORE CITY COUNCIL, the

legislative body of the City of Kenmore,

Defendants-Appellees

4a

Appendix B

MEMORANDUM*

Argued and Submitted March 10, 2008

Seattle, WA

Before: B. FLETCHER, PAEZ, N.R. SMITH, Circuit

Judges.

Plaintiff-Appellant Star Northwest (“Kenmore

Lanes”) operates a bowling alley, restaurant, and card

room in Kenmore, King County, Washington. In No. 06-

35801, Kenmore Lanes appeals the district court’s grant

of summary judgment to Appellees, the City of Kenmore

(the “City”) and the Kenmore City Council (the

“Council”), in Kenmore Lanes’ civil rights action

challenging, on federal and state law grounds, the

constitutionality of a City ordinance that banned the

operation of card rooms within city limits. In No. 06-

36029, Kenmore Lanes appeals from the district court’s

grant of attorneys’ fees in the amount of $180,552 to

the City.

In challenging the district court’s summary

judgment ruling,’ Kenmore Lanes argues that: 1) its card

room, the 11th Frame, is a nonconforming use entitled

to operate indefinitely under Kenmore Municipal Code

* This disposition is not appropriate for publication and is

not precedent except as provided by 9th Cir. R. 36-3.

1. We review de novo a district court's decision to grant a

motion for partial summary judgment. Delta Savings Bank ».

United States, 265 F.3d 1017, 1021 (9th Cir.2001).

Sa

Appendix B

sections 18.20.1860 and 18.75.030; 2) Kenmore Lanes has

a federal constitutional right to an amortization period

upon termination of its nonconforming use; 3) Kenmore

Ordinance 05-0237 (the “Ordinance”) violates Kenmore

Lanes’ substantive due process rights under Washington

Constitution, Article I, section 3; and 4) Kenmore Lanes’

federal Fifth Amendment takings claim is ripe for

adjudication. Finally, Kenmore Lanes argues that 5) the

district court erred in denying its request for discovery

regarding the City Council’s decisionmaking process when

it enacted the Ordinance.? We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm.

1. For purposes of this discussion, we assume, without

deciding, that following adoption of the Ordinance,

Kenmore Lanes’ card room qualifies as a nonconforming

use within the meaning of Municipal Code section

18.20.1860. The City, however, is not required to allow

the card room to operate indefinitely, as Kenmore Lanes

asserts. The text of section 18.75.0380 is permissive; it

states that “[o|nce created pursuant to KMC 18.20.1860,

a nonconformance may be continued in a manner

consistent with the provisions of this chapter.”

KMC § 18.75.030 (emphasis added). It is well established

under Washington law that the City may regulate a non-

conforming use with “subsequently enacted reasonable

police power regulations.” Rhod-A-Zalea & 35th, Inc. v.

Snohomish County, 186 Wash.2d 1, 959 P2d 1024, 1029

(1998). The City is not required to allow a non-

2. We review a district court’s discovery rulings for abuse

of discretion. Blackburn v. United States, 100 F.3d 1426, 1436

(9th Cir.1996); Hall ». Norton, 266 F.3d 969, 977 (9th Cir.2001).

6a

Appendix B

conforming use to exist indefinitely because “local

governments have the authority to preserve, regulate

and even, within constitutional limitations, terminate

nonconforming uses.” /d. at 1028. The district court

correctly granted summary judgment on this issue.

2. Washington courts have recognized a federal

constitutional right, under the Fourteenth Amendment’s

substantive due process guarantee, to a reasonable

amortization period for nonconforming uses terminated

by state or local regulation. See State v. Thomasson, 61

Wash.2d 425, 378 P2d 441, 443 (1963); Rhod-A-Zalea, 959

P2d at 1029. Kenmore Lanes argues that it is entitled to

such an amortization period for the City’s termination of

its card room operations. Those nonconforming uses that

are not vested rights under Washington law, however, are

not entitled to the benefit of an amortization period. See

Rhod-A-Zalea, 959 P2d at 1029. Under Washington law, a

gambling license cannot create a vested right. The

Washington Administrative Code provides that “the

issuance of any license by the [gambling] commission shall

not be construed as granting a vested right in any of the

privileges so conferred.” WAC § 230-04-175. We look to

state law to “define and determine the range of interests

that qualify for protection as property” under the Fifth

and Fourteenth Amendments. Lucas v. S.C. Coastal

Council, 505 U.S. 1003, 1030, 112 S.Ct. 2886, 120 L.Ed.2d

798 (1992). Accordingly, because Kenmore Lanes cannot,

under Washington law, have a vested interest in the

continued operation of its card room gambling business, it

is not constitutionally entitled to an amortization period.

Ta

Appendix B

3. Next, Kenmore Lanes argues that the Ordinance

violates its substantive due process rights under Article

1, section 3 of the Washington Constitution. We

disagree. Washington courts apply a three-pronged test

to determine whether an ordinance violates substantive

due process. Presbytery of Seattle v. King County, 114

Wash.2d 320, 787 P2d 907, 912-13 (1990). Under this test,

we consider whether the ordinance 1) is aimed at

achieving a legitimate public purpose, 2) uses means

that are reasonably necessary to achieve that purpose,

and 3) is unduly oppressive on the person regulated.

Edmonds Shopping Cir. Assoc. v. City of Edmonds, 117

Wash.App. 344, 71 P3d 238, 242 (2003). On this record,

we agree with the district court that each of these

elements weighs against a finding that the Ordinance

violates Kenmore Lanes’ substantive due process rights,

and we conclude that dismissal of this claim was proper.

See id. at 248; Paradise, Inc. v. Pierce County, 124

Wash.App. 759, 102 P3d 173, 181 (2004).

4, Kenmore Lanes next argues that the district court

errer in conciuding that its federal Fifth Amendment

takings claim was not yet ripe for adjudication. We

disagree. A federal takings claim is not ripe until the

claimant has sought, and been denied, compensation

through state procedures for claims of regulatory

takings or inverse condemnation. Williamson County

Reg'l Planning Comm’n v. Hamilton Bank of Johnson

City, 473 U.S. 172, 194-95, 105 S.Ct. 3108, 87 L.Ed.2d

126 (1985). We have previously found Washington’s

mechanism for adjudicating claims of regulatory takings

to be adequate and a necessary prerequisite to a federal

8a

Appendix B

takings claim. Macri v. King County, 126 F.3d 1125, 1129

(9th Cir.1997). Here, it is undisputed that Kenmore

Lanes did not take this step prior to filing the instant

action in federal court.

Neither of the arguments advanced by Kenmore

Lanes persuade us that its takings claim should be

exempted from this requirement. While Washington

courts have yet to address the impact of Lingle v.

Chevron U.S.A., Inc., 544 U.S. 528, 125 S.Ct. 2074, 161

L.Ed.2d 876 (2005), on federal takings analysis, it would

be premature to conclude that the Washington courts

will not, if presented with Kenmore Lanes’ takings

claim, apply the standard adopted by the Supreme Court

in Lingle. Furthermore, the Court has solidly rejected

the argument that the ripeness rule is unfair because a

claimant might be collaterally estopped from litigating

its federal takings claim if it pursues state court

remedies, and we are bound to do the same here. San

Remo Hotel, L.P. v. City and County of San Francisco,

545 U.S. 328, 341-48, 125 S.Ct. 2491, 162 L.Ed.2d 315

(2005).

5. Finally, Kenmore Lanes challenges three discovery

rulings by the district court that limited the scope of

discovery regarding the Council’s decisionmaking

process in adopting the Ordinance because such

discovery was relevant and necessary to its claims. It is

well-settled, however, that inquiries into a legislator’s

deliberative process in reaching a particular legislative

decision are, absent extraordinary circumstances,

prohibited by the “deliberative process” privilege. See

9a

Appendix B

City of Las Vegas v. Foley, 747 F.2d 1294, 1297-98 (9th

Cir.1984). Our review of the record persuades us that

the district court’s discovery rulings were narrowly

tailored to preclude Kenmore Lanes from inquiring into

the individual, subjective motivations of Council

members regarding their purpose in adopting the

Ordinance and did not prohibit any discovery that would

have been relevant to the constitutional claims at issue

in this case. Given the discretionary standard of review

applicable to discovery rulings, we therefore affirm.

Blackburn, 100 F.3d at 1486.

Kenmore Lanes also challenges the district court’s

award of attorneys’ fees and costs to the City.* First,

Kenmore Lanes argues that the district court

erroneously interpreted the mandatory filing deadline

of Federal Rule of Civil Procedure 54(d)(2). Additionally,

Kenmore Lanes argues that the district court

erroneously awarded fees for 1) claims on which the City

did not prevail and 2) work outside the parties’ attorney

fee agreement, including work originating in the Office

of the City Attorney and time spent responding to public

records requests made under the authority of the

Washington Public Disclosure Act. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we reverse and

reinand.

Kenmore Lanes first argues that the City’s motion

for attorneys’ fees was untimely under Rule 54(d)(2) and,

3. We review for abuse of discretion a district court’s award

of attorneys’ fees, including the amount of the award. Tutor-

Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1059 (9th Cir.2006).

10a

Appendix B

as a result, the district court could not grant the City’s

untimely motion. We are not persuaded. Regardless of

whether the motion was untimely, the district court had

discretion to reach the merits of the late motion. The

district court noted that the motion was filed four days

after the Rule 54 deadline, and that Plaintiff was not

prejudiced by the late filing. A district court has broad

jurisdiction to grant attorneys’ fees and costs. Davis v.

Mason County, 927 F.2d 1478, 1487 (9th Cir.1991). On

this record, we conclude that the district court did not

abuse its discretion in reaching the merits of the City’s

motion for attorneys’ fees and costs.

Kenmore Lanes next argues that the district court

erred in failing to segregate fees relating to claims on

which the City prevailed from fees relating to claims on

which it did not prevail. We agree that a defendant is

not a “prevailing party” with regard to claims dismissed

without prejudice. See Branson v. Nott, 62 F.3d 287, 293

(9th Cir.1995) (“Where a complaint has been dismissed

for lack of subject matter jurisdiction, the defendant

has not prevailed over the plaintiff on any issue central

to the merits of the litigation.” (internal quotation marks

and citation omitted)). W2 therefore conclude that the

district court should not have considered the City the

prevailing party with respect to Kenmore Lanes’ Fifth

Amendment takings claim and its state law gambling

tax revenue claim for purposes of calculating attorneys’

fees and costs. Accordingly, we reverse the district

court’s award of attorneys’ fees and costs as to those

two claims. We remand so that the district court may

determine the amount of reasonable fees due the City

lla

Appendix B

for the claims on which it prevailed. See Chalmers v. City

of Los Angeles, 796 F.2d 1205, 1210 (9th Cir.1986)

(holding that for purposes of claiming a fee award

pursuant to 42 U.S.C. § 1988, “counsel bears the burden

of submitting detailed time records justifying the hours

claimed to have been expended.”).

Finally, Kenmore Lanes argues that the district

court erred by failing to segregate and deny fees for

1) matters originating in the office of the City Attorney

and 2) publie record requests made by Short, Cressman

& Burgess, PLLC. We agree. The district court’s order

granting the City’s motion reflects an award of fees for

time spent by the City’s attorneys on matters

completely unrelated to the litigation between the

parties. Because the City is entitled to recover fees only

for its attorneys’ work on claims on which the City

actually prevailed, Boeing Co. v. Sierracin Corp., 108

Wash.2d 38, 738 P2d 665, 682-83 (1987), it was an abuse

of discretion for the district court to award those

unrelated fees to the City. On remand, the district court

should review the City’s billing records and should not

award fees for time spent on matters unrelated to the

claims on which the City was the prevailing party.

No. 06-35801: AFFIRMED.

No. 06-36029: REVERSED and REMANDED.

In No. 06-85801, Appellees shall recover their costs

on appeal.

In No. 06-36029, Appellant shall recover its costs

on appeal.

12a

APPENDIX C — CORRECTED ORDER ON MOTION

FOR SUMMARY JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF WASHINGTON AT SEATTLE

DATED AUGUST 10, 2006

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

NO. C05-2133P

STAR NORTHWEST, INC., d/b/a

KENMORE LANES and 11" FRAME CASINO,

Plaintiff(s),

v.

CITY OF KENMORE, et al.,

. Defendant(s).

CORRECTED

ORDER ON MOTION FOR

SUMMARY JUDGMENT

This corrected order of summary judgment seeks

to redress errors in the Court’s original order (Dkt. No.

90) which were brought to light in Plaintiff’s Motion for

Reconsideration (Dkt. No. 96). On August 10, 2006, the

Court held a telephonic conference in which counsel for

all parties (Paul Dayton for Plaintiff, Dan Lossing and

Jayne Freeman for Defendants) participated. Although

Defendants did not respond in writing to Plaintiff’s

Motion for Reconsideration, agreement with Plaintiff’s

l3a

Appendix C

positions on the two issues presented for

reconsideration (first, that Plaintiff’s Sixth Cause of

Action for refund of gambling tax revenues had not been

addressed by the summary judgment motion and

therefore survived the Court’s ruling on that motion;

second, that dismissal of Plaintiff’s takings claim for

non-ripeness should have been without prejudice) was

voiced orally.

Defendants City of Kenmore and Kenmore City

Council sought an order of summary judgment

dismissing Plaintiff’s claims against them for enacting

an ordinance banning the operation of social card rooms

within the Kenmore city limits. Having reviewed the

briefing, exhibits and declarations of both sides and

having heard oral argument on the motion, the Court

found that there were no genuine issues of material fact

and that Defendants were entitled to judgment as a

matter of law. The Court’s corrected order on summary

judgment shall be entered as follows:

The Court PARTIALLY GRANTS Defendants’

motion for summary judgment and DISMISSES all of

Plaintiffs’ claims except Plaintiff’s Sixth Cause of Action

(which was not the subject of Defendants’ motion); the

dismissed claims shall all be dismissed with prejudice

except for Plaintiff’s claim that Defendants’ action

constituted a taking without just compensation, which

claim shall be dismissed without prejudice.

l4a

Appendix C

BACKGROUND

By statute (the Washington Gambling Act), the state

legislature preempted the fields of gambling licensing

and regulation. RCW 9.46 .285. The statutory scheme

invests a limited authority in the state’s counties and

cities as regards gambling:

[A] city ... may absolutely prohibit, but may

not change the scope of license, [ sic ] any and

all of the gambling activities for which the

license was issued. RCW 9.46.295.

On March 10, 2003, the Kenmore City Council (“the

Council”) passed an ordinance, No. 03-167, that banned

card rooms, but permitted Plaintiffs’ operation (the

“11th Frame”) to remain open under a “grandfather”

clause. Def Mtn, Batchelor Decl. at pp. 477-504. In the

wake of the decision in Edmonds Shopping Center

Assoc. v. City of Edmonds, 117 Wn.App. 344 (2003),'

King County Superior Court Judge Lukens ruled that

Defendants could not selectively permit some gambling

establishments and not others, but were required to

either permit or ban all gambling.

On December 19, 2005, the Council passed

Ordinance 05-0237 (“the Ordinance”), prohibiting social

1. “Instituting a schedule to phase out existing gambling

activities is not absolutely prohibiting gambling activities ...

[Differentiating between existing and future uses is more

regulatory in nature, thus violating RCW 9.46.925.” Edmonds,

117 Wn. App. at 352.

15a

Appendix C

card rooms within the City. Batchelor Decl. at pp. 11-18.

The termination of existing operations was to be effective

immediately (at the end of December 2005), with no

grandfathering or amortization period. Plaintiffs filed

this lawsuit, alleging causes of action for regulatory

taking, violations of state and federal substantive due

process and injuries under § 1983. Plaintiffs then filed

for a preliminary injunction to permit them to continue

operations during the pendency of this litigation; on the

eve of the injunction hearing, the parties reached an

agreement and the card room has remained in operation

throughout the course of this action.

DISCUSSION

Plaintiffs attack the Ordinance on three grounds:

(1) the Ordinance results in the card room being

transformed into a “legal nonconforming use” which is

entitled to continue indefinitely or at least be “reasonably

amortized”; (2) the Ordinance works a taking on

Plaintiffs’ enterprise for which they are entitled to

compensation; and (3) the Ordinance is a violation of

state and federal substantive due process. This opinion

will examine each argument in turn.

Nonconforming use

The Kenmore Municipal Code defines a non-

conformance as:

[A]ny use... established in conformance with

the city of Kenmore rules and regulations in

l6a

Appendix C

effect at the time of establishment that no

longer conforms to the range of uses

permitted in the site’s current zone ... due to

changes in the code or its application to the

subject property.

KMC 18.20.1860. Plaintiffs’ card room fits the

qualifications of a “nonconforming use” under this

definition: it was established in the 1970s before the

incorporation of the city (Pitfs Decl. of Evans, Dkt. No.

8) and as late as 2003 was permitted to remain in

operation by virtue of a “grandfather” clause to an

ordinance which otherwise operated to ban card rooms

within the city. Batchelor Decl. at pp. 477-504. It is only

by virtue of the Ordinance in question that it “no longer

conforms to the range of uses permitted in the site’s

current zone...”

The Kenmore development regulations further state

that, “[o]nce created pursuant to KMC 18.20.1860, a

nonconformance may be continued in a manner

consistent with the provisions of this chapter .” KMC

18.75.0380. It is Plaintiffs’ position that these regulations

combine to dictate that the city must permit any

nonconforming use to continue indefinitely.

This is not a supportable contention. First of all, the

language of KMC 18.75.0300 is permissive: “... a

nonconformance may be continued .. .” The language

of the Ordinance clearly speaks to an intention not to

permit card rooms to continue in Kenmore.

17a

Appendix C

Secondly, Plaintiffs’ position is at odds with the

holding of the leading Washington case on

nonconforming uses, Rhod-A-Zalea & 85th, Inc. v.

Snohomish County, 1386 Wash.2d 1 (1988). The

Washington Supreme Court observed that “[cJourts have

consistently recognized that nonconforming uses are

subject to later enacted reasonable police power

regulations.” Jd. At 9 (citations omitted). Clearly, even

if Plaintiffs’ card room constitutes a legal nonconforming

use, Defendant is not constrained from doing anything

but permitting the 11th Frame to remain in operation

indefinitely.

Plaintiffs, however, claim support from Rhod-A-

Zalea’s holding that “[l]ocal governments, of course, can

terminate nonconforming uses but they are

constitutionally required to provide a reasonable

amortization period.” Jd. at 10 (citation omitted).

Plaintiffs claim that the card room, if not entitled to

operate indefinitely, must at least be afforded a

“reasonable” time period during which to amortize their

loss. In response, Defendant cites to Edmonds’ and a

later case (Paradise, Inc. v. Pierce County, 124

Wash.App. 759 (2004)*) for their holdings that the

Washington Gambling Act does not permit the

2. “Instituting a schedule to phase out existing gambling

activities is not absolutely prohibiting gambling . . . it is

regulation.” Edmonds, 117 Wn.App. at 358.

3. “[BJecause the County could not regulate gambling, a

ban on gaming was the only means available to realize the public

purpose of stopping card room gaming.” Paradise, 124

Wash.App. at 775.

18a

Appendix C

municipalities to “regulate” gambling operations by

building in amortization periods or grandfather clauses.

This opinion does not seek to reconcile that

apparent conflict; rather the Court finds that the Rhod-

A-Zalea holding concerning amortization for

nonconforming uses does not apply to gambling

operations like Plaintiffs’. The protection afforded

nonconforming uses springs from the “vested rights”

accorded such uses by virtue of the fact that the uses

were legal when they originated: “The right to continue

a nonconforming use despite a zoning ordinance which

prohibits such a use in the area is sometimes referred

to as a ‘protected’ or ‘vested’ right.” Rhod-A-Zalea, 136

Wash.2d at 6.

But the state has specifically exempted gambling

licenses from the creation of any vested rights. The

Washington Administrative Code states: “[T]he issuance

of any license by the commission shal] not be construed

as granting a vested right in the privileges so

conferred.” WAC 230-04-175. Plaintiffs cannot avail

themselves of the protections traditionally granted

nonconforming uses because they cannot claim a vested

right in the continued operation of their gambling

operation. Defendants are within their statutory and

constitutional authority to exercise their police power

by terminating the gaming use immediately.

19a

Appendix C

Takings

Private property shall not be taken for public use,

without just compensation. U.S. Constitution,

Amendment V. Plaintiffs seek such compensation

pursuant to a regulatory taking, but their claim to this

constitutional protection suffers from two fatal defects.

The first concerns whether Plaintiffs even have a

“private property” interest in their card room operation

which the Constitution will protect. In U.S. and Fed.

Communications Commission v. Edge Broadcasting

Co., 509 U.S. 418 (1993), the Supreme Court stated that

gambling “implicates no constitutionally protected right;

rather, it falls into a category of ‘vice’ activity that could

be, and frequently has been, banned altogether.” Jd. at

426. The Court finds that this holding, combined with

the WAC admonition that the issuance of a gambling

license “shall not be construed as granting a vested right

in the privileges so conferred,” renders Plaintiff unable

to claim a protectable right in the operation of the 11th

Frame card room.

In addition to the absence of a constitutionally

protected right, Plaintiffs brought this claim directly in

federal court. A federal takings claim is not ripe until

the claimant has sought, and been denied, compensation

through state procedures for such claims. Williamson

Co. Reg. Planning Comm’n v. Hamilton Bank of

Johnson City, 473 U.S. 172, 194-95 (1985). Washington’s

mechanism for adjudicating claims of regulatory takings

has been found adequate and a necessary prerequisite

20a

Appendix C

to a federal takings claim. Macri v. King County, 126

F.3d 1125 (9th Cir.1997). Plaintiffs have completely failed

to pursue a regulatory takings claim in state court.

Plaintiffs’ interpose two objections to this

requirement. The first is that the pursuit of such a

determination in state court would be “futile” and

therefore nonperformance should be excused. Plaintiffs

point to the two threshold inquiries that state law

takings claims require (“First, whether the regulation

destroys or derogates a fundamental property

ownership attribute. Second, whether the regulation

seeks less to prevent a harm than to impose a

requirement to provide an affirmative public benefit.”

Pitfs Memo, fn. 21.) and then assert, without authority

or explanation, that “[t]hey cannot be proved here.”

Id. at p. 15. It is not at all apparent to this Court why

this should be the case. In point of fact, the argument

that their right to continue operation of the card room

is a “fundamental property ownership attribute” is one

of the central tenets of Plaintiffs’ position in this lawsuit.

Plaintiffs fail to establish that pursuing adjudication of

their compensation claim through state court would be

a futile and useless act.

Plaintiffs’ second objection to the standard federal

takings claim prerequisite is both theoretical and

unpersuasive. Plaintiffs cite to San Remo Hotel, L.P. v.

City and County of San Francisco, 545 U.S. 3238, 125

S.Ct. 2491 (2005) and quote the San Remo opinion to

suggest that the Supreme Court intended to eliminate

or somehow disavow the Ninth Circuit’s Macm holding

2la

Appendix C

requiring the adjudication of a takings claim through

the state compensation process. The language which

Plaintiffs quote‘ is in fact pre- Williamson language and

is cited in a context which in no way suggests that an

“exhaustion of state remedies” requirement is overly

stringent or unfair.

In actuality, there is language in the San Remo

opinion suggesting the Williamson requirement of

state exhaustion ought to be re-examined but (as

Plaintiffs acknowledge) the language is only found in

the concurring opinion and (as careful reading of the

selection reveals) it is more in the nature of a musing or

a suggestion than a pronouncement with any

precedential value. The fact remains that Willzamson

and Macri are still valid legal authority and this Court

will not accent Plaintiffs’ invitation to ignore them. The

takings claim is not ripe and will accordingly be

dismissed without prejudice.

Both parties provided briefing on whether the action

before this Court satisfies the substantive elements of

a takings claim. On the basis of the finding that Plaintiffs’

takings claim is not yet ripe, this opinion does not reach

the merits of that cause of action.

4. “[A] claim that the application of government

regulations effects a taking of a property interest is not ripe

until the government entity charged with implementing the

regulations has reached a final decision regarding the

application of the regulations to the property at issue.” 125 8.Ct.

at 250

22a

Appendix C

Substantive Due Process

Plaintiffs’ federal and state substantive due process

claims must be analyzed separately. At both the state

and federal levels, a three-part test (with slight

variations) is employed. The test considers:

1. Whether the regulation is aimed at

achieving a legitimate public purpose;

2. Whether it uses means that are “reasonably

necessary” to achieve that purpose (the

federal test asks if the means are “rationally

related” to the purpose); and

3. Whether it is unduly oppressive on the

landowner.

Edmonds, 117 Wash.App. at 364; Pearson v. City of

Grand Blanc, 961 F.2d 1211, 1223 (6th Cir.1992).

The Court declines to reach the issue of whether

Plaintiffs have a supportable federal substantive due

process claim. Defendants cite a line of federal authority

which clearly holds that “the scope of substantive due

process does not extend to areas addressed by other,

more specific provisions of the Constitution.”

Armendariz v. Penman, 75 F.8d 1811, 1326 (9th

Cir.1996); see also Squaw Valley Dev. v. Goldberg, 375

Ii3d 936, 948 (9th Cir.2004); Madison vu. Graham, 316

F.3d 867, 870-71 (Mont.2002) (“Since deciding

Armendariz, this court has consistently held that

23a

Appendix C

substantive due process claims are precluded where the

alleged violation is addressed by the explicit textual

provisions of the Fifth Amendment’s Takings Clause.”).

The Armendariz court notes that the Supreme

Court has been steadily moving away from extending

substantive due process protections to purely economic

interests such as those of Plaintiff’s. 75 F3 at 1318.

Neither in their briefing nor at oral argument have

Plaintiffs responded to this clear federal precedent, and

the Court will assume on that basis that Plaintiffs

concede the validity and impact of the Armendariz

rationale. Plaintiffs’ federal substantive due process

claim will be dismissed.

Plaintiffs fare no better under the state substantive

due process analysis:

1. Legitimate public purpose: Plaintiffs

argue that, since the Council did not explicitly

state a purpose for the Ordinance, this Court

must accept Plaintiffs’ contention that the

purpose was to prohibit the proliferation of

ecard rooms. The language of the Ordinance

belies that argument—the only rational

reading of its wording is that its purpose is to

prohibit all card rooms, not merely halt the

spread of them.’ The Edmonds court found a

5. And the firmly established Edmonds/Paradise

precedent prohibiting municipalities from only banning the

future establishment of card rooms has been discussed at length

supra

24a

Appendix C

legitimate public purpose to that

municipality’s ordinance (a) in the testimony

presented at council meetings (although there

is evidence that there was testimony from

supporters and detractors of social card

rooms, Plaintiffs do not dispute that there was

some sentiment in the community in favor of

banning gambling) and (b) in the “historical

acceptance of the regulation of gambling as a

valid exercise of the police power and the

explicit authorization by the Legislature in

RCW 9.46.295 to permit municipalities to

prohibit gambling absolutely.” 117 Wash.App.

at 365. The Court finds that Defendants’

intention to ban social card rooms represented

a legitimate public purpose.

2. Reasonably necessary: Edmonds and

Paradise make it clear that, in the state of

Washington, under RCW 9.46.295, anything

short of a complete ban would amount to an

impermissible “regulation” of gambling.

Edmonds, at 365; Paradise, at 181. The Court

finds that the Ordinance was reasonably

necessary in order for Defendants to prohibit

gambling as they were authorized to do by the

Legislature.

3. Unduly oppressive: The leading state

case ( Presbytery of Seattle v. King County,

114 Wn.2d 320 (1990)) lists several factors to

consider in weighing oppressiveness:

25a

Appendix C

a. The nature of the harm to be

avoided: As has been discussed fully

supra, gambling has long been

considered an activity which is

legitimately the subject of the

exercise of a municipality’s police

power;

b. The availability and effectiveness

of less drastic protective measures:

Again, as fully explicated above, the

current state of statutory and case law

dictates that the municipality which

wishes to prohibit gambling is

constrained from any “less drastic

protective measures” than a complete

and immediate ban;

ce. The economic loss suffered by the

properly owner: The Court is aware

of Plaintiffs’ claim that the closing of

the card room will doom the associated

enterprises of the bowling alley and

restaurant which also occupy the

property in question. Pltfs Memo, p.

18. However, the Court is mindful of

the fact that Plaintiffs still own a

valuable piece of commercial property

for which many possible profitable

uses remain—the effect of

Defendants’ action has been to

restrict one activity, not to deny

26a

Appendix C

Plaintiffs the opportunity to turn the

property to any profitable use (as

would be the case had the property

been turned to usé as a public park

or wildlife preserve). The Court does

not find that the Defendants’ proper

exercise of its police power for a

legitimate public purpose is

outweighed by the nature of Plaintiffs’

economic loss.

d. The property owner’s ability to

anticipate the regulation: The Court

finds some merit in Plaintiffs’

contention that their lengthy

existence within the community,

coupled with the “grandfather” status

accorded the 11th Frame in the 2003

ordinance and the fact that as

originally written the 2005 ordinance

allowed the card room to live out the

length of its current license (the final

version of the Ordinance eliminated

this provision), may have impaired

their ability to anticipate the

municipality’s action. However, these

considerations must be balanced

against other facts: the existence of

the Washington Gambling Act

empowering municipalities to prohibit

gambling, the 2003 rulings in

Edmonds and Paradise upholding the

2/a

Appendix C

exercise of that power by other

municipalities, and Judge Lukens’

ruling in the wake of Edmonds that

Defendants’ moratorium was an

inappropriate “regulation” of

gambling in violation of RCW 9.46.295.

Additionally, the finite nature of the

gambling license itself—the fact that

Plaintiffs had to face a process of

reapplication and possible denial of

the license annually—constituted

some notice that their continued

existence was never assured. At best

these countervailing factors balance

each other out and, in the grand

weighing-and-balancing scheme of

the test for “undue oppression,” they

cannot be said to tip the scales in

Plaintiffs’ favor.

It is the opinion of this Court that an examination

of all the factors necessary for establishment of a

substantive due process violation under state law yields

the conclusion that Plaintiffs have not, as a matter of

law, succeeded in making their case for this cause of

action. Accordingly, both the federal and state

substantive due process claims will be dismissed on

summary judgment.

28a

Appendix C

CONCLUSION

Finding no genuine issues of disputed material fact,

the Court finds that Defendants are entitled to partial

summary judgment as a matter of law. The card room is

not entitled to the protections accorded legal

nonconforming uses because Plaintiffs have no vested

rights in its gambling license or operation. Plaintiffs’

takings compensation claim is not yet ripe. The federal

courts do not recognize a substantive due process claim

where a party has a more specific unjust takings claim

and Plaintiffs have not satisfied the conditions for a

finding of a substantive due process violation under

state law. This order does not dismiss Plaintiffs’ Sixth

Cause of Action. The remainder of Plaintiffs’ claims are

hereby DISMISSED; the Ninth Cause of Action is

dismissed without prejudice.

The clerk is directed to provide copies of this order

to all counsel of record.

Dated: August 10, 2006

s/ Marsha J. Pechman

Marsha J. Pechman

U.S. District Judge

29a

APPENDIX D— CITY OF KENMORE, WASHINGTON

ORDINANCE ADOPTED DECEMBER 19, 2005

CITY OF KENMORE

WASHINGTON

ORDINANCE NO. 05-0237

AN ORDINANCE OF THE CITY OF

KENMORE, WASHINGTON, PROHIBITING

SOCIAL CARD GAMES WITHIN THE CITY;

AMENDING CHAPTER 18.20 OF THE

KENMORE MUNICIPAL CODE; AMEND-

ING SECTIONS 18.25.040 AND 18.25.070 OF

THE KENMORE MUNICIPAL CODE TO

PROHIBIT SOCIAL CARD GAMES WITHIN

THE CITY; PROVIDING FOR SEVERABIL-

ITY; AND ESTABLISHING AN EFFECTIVE

DATE

WHEREAS, the City of Kenmore has adopted a

Comprehensive Plan in compliance with the Growth

Management Act; and

WHEREAS, gambling activities are not adequately

addressed in the City’s Comprehensive Plan, Interim

Zoning Code or other interim development regulations;

and

WHEREAS, in March of 1999, the City Council

adopted a moratorium on applications for social card game

gambling within the City, and has extended the moratorium

every six months until March 20, 2003; and

WHEREAS, Division 1 of the Court of Appeals issued

its opinion on June 26, 2003, in Edmonds Shopping Center

30a

Appendix D

Assoc., et al. v. City of Edmonds, affirming that cities may

prohibit any or all gambling activities, but calling into

question cities’ ability to exercise zoning or other general

police powers over licensed gambling activities; and

WHEREAS, the Court of Appeals has also ruled that

cities lack the authority under current statutory language

to “grandfather” existing social card games conducted at

premises licensed by the State Gambling Commission or

to amortize the continued existence of any such social card

games; and

WHEREAS, the Legislature has granted clear

authority to the City Council in RCW 9.46.295 to absolutely

prohibit within the City of Kenmore any or all gambling

activities authorized by the Legislature; and

WHEREAS, the City Council had conducted

numerous public meetings and public hearings and has

otherwise received significant public comment regarding

the city’s regulation of legal gambling activities; and

WHEREAS, the City Council desires to adopt an

ordinance prohibiting social card games throughout the

City pursuant to RCW 9.46.295 and the City Council’s

constitutional authority to regulate the public health,

safety, and welfare in a manner consistent with the general

law;

3la

Appendix D

NOW, THEREFORE, THE CITY COUNCIL OF

THE CITY OF KENMORE WASHINGTON, DO

ORDAIN AS FOLLOWS:

Section 1. Social Card Game Prohibited. Pursuant

to RCW 9.46.295, “social card games,” as that term is

defined in RCW 9.46.0282 as now in effect or may

subsequently be amended, are prohibited within the City

of Kenmore. Social card games shall not be permitted,

maintained or operated as a commercial stimulant for the

operation of any business primarily engaged in the selling

of food or drink for consumption on the premises, nor for

any other reason or under any other circumstances.

Nothing in this ordinance shall be construed to otherwise

change the scope of any current license issued by the State

Gambling Commission.

Section 2. Social Card Game Defined. Chapter 18.20

(Technical Terms and Land Use Definitions) of the

Kenmore Municipal Code is amended to add a new

definition to read as follows:

18.20.2782 Social Card Game.

“Social card game” is defined as set forth in

RCW 9.46.0282, as now in effect or as may be

subsequently amended or re-codified.

32a

Appendix D

Section 3. Permitted Uses - Retail Land Uses.

Section 18.25.070(A) (Retail Land Uses) of the Kenmore

Municipal Code is amended at SIC Code 58, the table

for “Eating and Drinking Places,” to read as follows:

18.25.070 Retail land uses.

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33a

Appendix D

Section 4. Permitted Uses - Development

Conditions. Section 18.25.070(B) (Retail Land Uses -

Development Conditions) of the Kenmore Municipal

Code is amended to read as follows:

B. Development Conditions.

1. Reserved.

2. Only hardware and garden materials shall be

permitted.

3. a. Limited to products produced on-site.

b. Coveted sales areas shall not exceed a total area

of 500 square feet.

4. No permanent structures or signs.

5. Limited to SIC Industry No. 5331, Variety Stores,

and further limited to a maximum of 2,000 square

feet of gross floor area.

6. Limited to a maximum of 2,000 square feet of

gross floor area.

7. a. The floor area devoted to retail sales shall not

exceed 3,500 square feet.

b. Sixty percent or more of the average annual

gross sales of agricultural products sold through the

store over a five-year period shall be derived from

products grown or produced in the city of Kenmore.

At the time of the initial application, the applicant

shall submit a reasonable projection of the source

of product sales.

34a

Appendix D

c. Sales shall be limited to agricultural produce and

plants.

d. Storage areas for produce may be included ina

farm store structure or in any accessory building.

e. Hours of operation shall be limited to 7:00 a.m.

to 9:00 p.m. during May through September and

7:00 a.m. to 7:00 p.m. during October through April.

Outside lighting is permitted if no off-site glare is

allowed.

8. Excluding retail sale of trucks exceeding one-ton

capacity.

9. Only the sale of new or reconditioned automobile

supplies is permitted.

10. Excluding SIC Industry No. 5813 - Drinking

Places.

11. No outside storage of fuel trucks and

equipment.

12. Excluding vehicle and livestock auctions.

13. Reservea.

14. Notin R-1 and limited to SIC Industry No. 5331

- Variety Stores, limited to a maximum of 5,000

square feet of gross floor area, and subject to KMC

18.30.220.

15. Not permitted in R-| and limited to a maximum

of 5,000 square feet of gross floor area and subject

to KMC 18.30.220.

16. Not permitted in R-1 and excluding SIC

Industry No. 5813 - Drinking Places, and limited to

a maximum of 5,000 square feet of gross floor area

and subject to KMC 18.30.220.

35a

Appendix D

17. Retail sale of livestock is permitted only as

accessory to raising livestock.

18. Limited to the R-1 zone.

19. Limited to the sale of livestock feed, hay and

livestock veterinary supplies with a covered sales

area of not more than 500 square feet. The 500-

square foot limitation does not include areas for

storing livestock, feed, hay or veterinary supplies

or covered parking areas for trucks engaged in

direct sale of these products from the truck.

20. a. Covered sales areas shall not exceed a total

area of 2,000 square feet.

b. Sixty percent or more of the average annual

gross Sales of agricultural products sold through the

store over a five-year period shall be derived from

products grown or produced in the city of Kenmore.

At the time of the initial application, the applicant

shall submit a projection of the source of product

sales.

c. Sales shall be limited to agricultural produce and

plants.

d. Storage areas for produce may be included in a

farm store structure or in any accessory building.

e. Hours of operation shall be limited to 7:00 a.m.

to 9:00 p.m. during May through September and

7:00 a.m. to 7:00 p.m. during October through April.

Outside lighting is permitted if no off-site glare is

allowed.

21. Social card games, as defined by this Title are

prohibited.

36a

Appendix D

Section 5. Permitted Uses - Recreational/cultural

land uses. Section 18.25.040(A) (Recreational/cultural

land uses) of the Kenmore Municipal Code is amended

at SIC Code 7999, the table for “Amusement and

Recreation Services,” to read as follows:

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37a

Appendix D

Section 6. Permitted Uses - Development

Conditions. Kenmore Municipal Code Section

18.25.040(B) (Recreational/cultural land uses -

Development Conditions) is hereby amended to read as

follows:

B. Development Conditions.

1. The following conditions and limitations shall

apply, where appropriate:

a. No stadiums on sites less than 10 acres;

b. Lighting for structures and fields shall be

directed away from residential areas;

c. Structures or service yards shall maintain a

minimum distance of 50 feet from property lines

adjoining residential zones, except for structures in

on-site recreation areas required in KMC 18.35.170

and 18.35.180. Setback requirements for structures

in these on-site required recreation areas shall be

maintained in accordance with KMC 18.30.030;

d. Facilities in the A zones, or in a designated rural

forest focus area, shall be limited to trails and

trailheads and active recreation facilities, including

related accessory uses such as parking and sanitary

facilities. Active recreation facilities shall be limited

to those properties within the agricultural

production district (APD) that are acquired before

designation of the APD, using voter-approved

recreation funds, state funds mandated for

recreation funds or King County board of recreation

funds. Active recreation uses allowed on parcels as

38a

Appendix D

noted in this subsection may be transferred to other

parcels within the same APD. However, active

recreation from lands outside of the APD shall not

be relocated to any parcel within an APD. Where

those facilities are permitted within an APD, the

following deed restrictions shall be applied:

(1) Active recreation uses shall be designed in a

manner that visually screens adjacent agricultural

uses from park users and that restricts physical

trespass onto adjacent agricultural production

district properties;

(2) Buildings associated with recreational uses shall

be limited to restroom facilities, picnic shelters and

storage/maintenance facilities for equipment used

on-site;

(3) No use that permanently compacts, removes,

sterilizes, pollutes or otherwise materially impairs

the future use of the soil for raising agricultural

crops shall be allowed;

(4) Any soil surfaces temporarily disturbed through:

construction activities shall be restored in a manner

consistent with agricultural uses, including

restoration of the original soil horizon sequence, as

soon as practical following the disturbance;

(5) Access to recreational uses shall be designed to

minimize impact on the surrounding agricultural

production district and should be limited to direct

access along district boundaries whenever feasible;

and

39a

Appendix D

(6) Although the recreational use of agricultural

production district properties may be long term, the

use shall be recognized as an interim use of the

production district’s prime agricultural soils. As

such, any acquisition funding or policy restrictions

for the recreational use of the property shall be

viewed as subordinate to the city’s prior

commitment to the preservation of prime

agricultural soils and the viability of local

agricultural production. If the city declares through

action of the city council a critical shortage of

agricultural soils to accommodate an active soil-

dependent agricultural proposal, the city shall

initiate a process to relocate any recreational uses

off the subject property and to make the property

available for re-establishment of agricultural

activities; and

e. Overnight camping is allowed only in an approved

campground.

2. Reserved.

3. Reserved.

4. Limited to recreation facilities subject to the

following conditions and limitations:

a. The bulk and scale shall be compatible with

residential or rural character of the area;

b. For sports clubs, the gross floor area shall not

exceed 10,000 square feet unless the building is on

the same site or adjacent to a site where a public

facility is located or unless the building is a nonprofit

facility located in the urban area; and

40a

Appendix D

c. Use is limited to residents of a specified

residential development or to sports clubs providing

supervised instructional or athletic programs.

5. Limited to day moorage.

6. Adult entertainment businesses shall be

prohibited within 330 feet of any property zoned R

or containing schools, licensed daycare centers,

public parks or trails, community centers, public

libraries or churches. In addition, adult

entertainment businesses shall not be located closer

than 3,000 feet to any other adult entertainment

business. These distances shall be measured from

the property line of the parcel or parcels proposed

to contain the adult entertainment business to the

property line of the parcels zoned R or that contain

the uses identified in this subsection.

7. Clubhouses, maintenance buildings, equipment

storage areas and driving range tees shall be at least

50 feet from residential property lines. Lighting for

practice greens and driving range ball impact areas

Shall be directed away from adjoining residential

zones. Applications shall comply with adopted best

management practices for golf course development.

8. Limited to a golf driving range as an accessory

to golf courses.

9. Reserved.

10. a. Only in an enclosed building, and subject to

the licensing provisions of KMC Title 5;

4la

Appendix D

b. Indoor ranges shall be designed and operated

so as to provide a healthful environment for users

and operators by:

(1) Installing ventilation systems that provide

sufficient clean air in the user’s breathing zone, and

(2) Adopting appropriate procedures and policies

that monitor and control exposure time to airborne

lead for individual users.

11. Only as accessory to a park or in a building listed

on the National Register as an historic site or

designated as a city of Kenmore landmark subject

to Chapter 18.75.KMC.

12. Reserved. Social card games, as defined by this

Title are prohibited.

13. Subject to the following:

a. The park shall abut an existing park on one or

more sides, intervening roads notwithstanding;

b. No bleachers or stadiums are permitted if the

site is less than 10 acres, and no public amusement

devices for hire are permitted;

ec. Any lights provided to illuminate any building or

recreational area shall be so arranged as to reflect

the light away from any premises upon which a

dwelling unit is located; and

d. Al! buildings or structures or service yards on

the site shall maintain a distance not less than 50

feet from any property line and from any public

street.

42a

Appendix D

14. Excluding amusement and recreational uses

classified elsewhere in this chapter.

15. Limited to golf driving ranges and subject to

subsection (B)(7) of this section.

16. Subject to the following conditions:

a. The length of stay per party in campgrounds shall

not exceed 180 days during a 365-day period; and

b. Only for campgrounds that are part of a proposed

or existing city park, which are subject to review

and public hearings through the department of

parks and recreation’s master plan process.

17. Only for stand-alone sports clubs that are not

part of a park.

Section 7. Transmittal. The City Clerk is directed

to transmit a certified copy of this Ordinance to the State

Gambling Commission.

Secticn 8. Severability. Should any section,

paragraph, sentence, clause or phrase of this Ordinance,

or its application to any person or circumstance, be

declared unconstitutional or otherwise invalid for any

reason, or should any portion of this Ordinance be pre-

empted by state or federal law or regulation, such

decision or pre-emption shall not affect the validity of

the remaining portions of this Ordinance or its

application to other persons or circumstances.

43a

Appendix D

Section 9. Effective Date. This Ordinance shall be

published in the official newspaper of the City, and shall

take effect and be in full force five (5) days after the

date of publication.

ADOPTED BY THE CITY COUNCIL AT A

REGULAR MEETING THEREOF ON THE 19" DAY

OF DECEMBER, 2005.

CITY OF KENMORE

s/ Steven Colwell

Steven Colwell, Mayor

ATTEST/AUTHENTICATED:

s/ Lynn Batchelor

Lynn Batchelor, City Clerk

Approved as to form:

s/ Rod P. Kaseguma

Rod P Kaseguma, City Attorney

Filed with the City Clerk: December 13, 2005

Passed by the City Council: December 19, 2005

Ordinance No. 05-0237

Date of Publication: December 23, 2005

Effective Date: December 29, 2005