                                                      'dRT OF APPEALS DP
                                                       TATE OF WASHiHGTO

                                                     20IXi APR 21 AHIhUS



           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ROBERT MATICHUK,
                                                 No. 69105-8-1
                    Appellant,
                                                 DIVISION ONE
      v.



WHATCOM COUNTY, a Washington
municipality; DAVID STALHEIM, in                 UNPUBLISHED OPINION
his capacity as Director of Whatcom
County, Planning & Development
Services; NICHOLAS A. SMITH, in
his capacity as Planner I, Whatcom               FILED: April 21, 2014
County Planning & Development
Services,

                     Respondents.


       Leach, J. — Robert Matichuk appeals the dismissal of his lawsuit for

damages against Whatcom County (County). He alleges that application of a county

zoning ordinance reducing the number of homes he could build on undeveloped

parcels of land he purchased before the zoning went into effect amounted to an

unconstitutional taking of his property. However, because Matichuk presented no

competent evidence to support his claim that the County's zoning ordinance

deprived him of all economically viable use of his property, we affirm the trial court's

order on summary judgment dismissing his lawsuit.
No. 69105-8-1/2




                                       FACTS


      Between 2005 and 2007, Robert Matichuk purchased a total of 8 contiguous

undeveloped lots in Whatcom County (lots 17 through 24).         He planned to build

homes on the lots and resell them.     Under the urban residential zoning in effect

when Matichuk purchased the parcels, he would have been permitted to build a total

of seven homes on the 8 lots.


      Matichuk began to develop the property in 2006.           He obtained building

permits for homes on lots 19 and 20. He built and sold those homes in 2007. He

secured permits and built another two homes on lots 21 and 22 in 2007.

      In February 2008, Whatcom County enacted Ordinance No. 2008-003, which

amended the Whatcom County Comprehensive Plan Map and rezoned Matichuk's

property to "Rural 5 acres." Each lot Matichuk purchased was less than five acres.

Whatcom County zoning code provision, WCC 20.83.070, also applied.                   It

consolidated adjacent lots under single ownership into a single lot when one of the

lots did not conform to the minimum parcel size requirements.

      A few months after the new zoning ordinance became effective, Matichuk

applied for building permits to construct three residences on the 4 lots that remained

undeveloped. Matichuk applied for a building permit to build one single-family home

on combined lots 23 and 24. He also applied for permits to build a home on lot 17

and a separate home on lot 18.
No. 69105-8-1/3




        In July 2008, Whatcom County Planning and             Development Services

(Planning Department) informed Matichuk that lots 17 and 18 were combined under

the new zoning ordinance and that only one home could be built on the combined

lot.   The Planning Department also informed Matichuk that lots 23 and 24 were

combined with lot 22.     Matichuk had already built a home on lot 22 and retained

ownership of that home.

        In August 2008, Matichuk sold the home on lot 22, together with the adjoining

lots 23 and 24.   Matichuk constructed a home on consolidated lots 17 and 18 and


sold that property in May 2009.

        Matichuk challenged the Planning Department's decisions on his permit

applications. He also applied for a comprehensive plan amendment seeking to have

the rezoning lifted from his property.   A hearing officer denied his appeal of the

permitting decisions, and the county council denied his request for rezoning.

Matichuk then filed this lawsuit in July 2011, seeking damages from the County.

Among other claims, Matichuk alleged that the lot consolidation required by the

rezoning amounted to an unconstitutional taking under the United States and

Washington State Constitutions.1




        1 Matichuk also asserted a claim for conversion and a civil rights claim under
42 U.S.C. § 1983 in his complaint. He appears to have subsequently abandoned
both claims.

                                          -3-
No. 69105-8-1/4




       The trial court granted the County's motion for summary judgment and

dismissed Matichuk's complaint. Matichuk appeals.2

                                     ANALYSIS


       Before the 2008 changes, Whatcom County's zoning code allowed the

construction of seven homes on Matichuk's 8 lots. But Matichuk did not have vested


rights under this earlier zoning for the undeveloped lots because he had not filed

building permit applications for them before the enactment of the new ordinance.3

Nevertheless, Matichuk claimed the zoning amounted to an unconstitutional

regulatory taking because he lost the opportunity to build and sell two planned

homes. According to Matichuk, when the County denied him the permits to build

these two homes, he lost all economically viable use of parcels 18, 23, and 24.

Because Matichuk did not present competent evidence supporting this claim, we

affirm the trial court.


       We review an order granting summary judgment de novo.4            Summary

judgment is appropriate where, viewing all facts and resulting inferences most

favorably to the nonmoving party, no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law.5


      2 In addition to the County, Matichuk named two Planning Department
employees as defendants in his complaint. Matichuk failed to serve either of the
employee defendants and when the court granted summary judgment in the
County's favor, it also entered final judgment in accordance with CR 54(b).
       3 See Weyerhaeuser v. Pierce County, 95 Wn. App. 883, 890, 976 P.2d 1279
(1999); Hale v. Island County, 88 Wn. App. 764, 771, 946 P.2d 1192 (1997).
       4 Brigqsv.NovaServs.. 166 Wn.2d 794, 801, 213 P.3d 910 (2009).
       5 Briqqs, 166 Wn.2d at 801; CR 56(c).
                                          -4-
No. 69105-8-1/5




       A party requesting summary judgment has the initial burden of showing the

absence of any genuine issue of material fact and entitlement to judgment as a

matter of law.6 A party opposing a request for summary judgment may not rest upon

the allegations of his pleading; the response, by affidavits or as otherwise provided

for by CR 56, must set forth specific facts showing a genuine issue of material fact.7

The party opposing a motion for summary judgment may not rely on speculation or

argumentative assertions that unresolved factual issues remain or on having its

affidavits considered at face value.8

       The takings clause of the Fifth Amendment protects individuals against

uncompensated takings by both the federal and state governments.9            Article I,

section 16 of the Washington Constitution further provides, "No private property shall

be taken or damaged for public or private use without just compensation having

been first made."


      A land use regulation may result in an unconstitutional taking.10 For instance,

an unconstitutional regulatory taking may occur where the regulation destroys a




       6 Young v. Key Pharms.. Inc.. 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
       7 Grimwood v. Univ. of Puqet Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517
(1988).
       8 Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1,13, 721 P.2d 1
(1986); Craig v. Wash. Trust Bank, 94 Wn. App. 820, 824, 976 P.2d 126 (1999).
       9 U.S. Const, amend. V ("nor shall private property be taken for public use,
without just compensation"); Dolan v. City of Tiqard. 512 U.S. 374, 383-84, 114 S.
Ct. 2309, 129 L. Ed. 2d 304 (1994) (takings clause is made applicable to the states
through the Fourteenth Amendment).
       10 Presbytery of Seattle v. King County. 114 Wn.2d 320, 329, 787 P.2d 907
(1990).
                                         -5-
No. 69105-8-1/6




fundamental attribute of ownership, such as the right to make "some economically

viable use of the property."11

       Matichuk contends that the trial court improperly granted summary judgment

based on the fact that he sold lots 18, 23, and 24. He claims that the court's ruling

was based upon mere speculation that these undeveloped lots added some value by

increasing the size of the lots for the homes built on lots 17 and 22. According to

Matichuk, the record contains no evidence that he received a higher purchase price

because of the larger lots. At the very least, he argues a question of fact exists for

this issue.


       In its motion for summary judgment, the County argued that because

Matichuk received value for the land, he could not establish that the zoning

ordinance deprived him of all economically beneficial use of his property. Matichuk

did not directly respond to this argument. He simply maintained that because the

County denied his applications for permits to build two additional homes, he could do
nothing with those lots and their "best and only use" was as additional yard space for

the adjoining homes.

       At the hearing on the County's motion for summary judgment, Matichuk's
counsel acknowledged that the undeveloped lots in question were not merely given

away. The court noted, "They may not have had the value that they could have
had, had he built a separate home on each one, but my understanding is that


        11 Guimont v. Clarke, 121 Wn.2d 586, 602, 854 P.2d 1 (1993).
                                          -6-
No. 69105-8-1/7




someone looking for a larger lot to go with their house would benefit from that extra

space."

       Counsel for Matichuk also acknowledged that the record included no

evidence to establish if or to what extent the value of the homes on the combined
lots was affected by the addition of adjoining undeveloped property. Matichuk did
not produce the purchase and sales agreements or any other evidence of the sales
price of either home. He did not submit any appraisals or other evidence to provide
a basis to compare the value of the homes with and without additional undeveloped
land. Counsel stated that he did not believe that the incorporation of lot 18 would
have made a "tremendous difference on value" with respect to the home built on lot
17 because both were small parcels. He admitted that consolidation of the 3 lots,
however, did create a "fairly large" parcel. When the court asked what evidence
Matichuk relied upon to argue that the purchase price was the same he would have
 received without the lot consolidation, he failed to identify any evidence.

          On appeal, Matichuk points out that in 2008, when he sold the home on the 3
 consolidated lots, he entered into a supplemental agreement with the purchasers to
 allow him to reacquire lots 23 and 24 in the event that the County reversed its
 permitting decision. He focuses on the fact that this agreement recites that lots 23
 and 24 were conveyed to the buyers, in addition to lot 22, "for no additional
 consideration." Matichuk contends that this evidence supports the inference that he
No. 69105-8-1/8




derived no additional value from the undeveloped property and the court was

required to draw this inference in his favor.

       However, to defeat the County's motion for summary judgment, Matichuk had

the burden of producing competent evidence to establish the elements of his claim.

The evidence produced by Matichuk was simply insufficient to do so. Matichuk

derived some economic value from the property he owned because he admittedly

built homes and sold them for value. He did not submit any evidence as to what that

value was, let alone establish that it was the same value he would have received

without the additional adjacent property. The supplemental agreement providing for

reconveyance of lots 23 and 24 and reciting "no additional consideration" for those
lots does not, in and of itself, establish that the adjacent lots added no value to the

property. And, of course, the agreement pertains to only one of the consolidated

parcels at issue.12

       Because Matichuk failed to meet his burden to produce evidence to establish

that the zoning ordinance deprived him of the ability to make some economically




        12 Because of our conclusion that Matichuk failed to produce sufficient
evidence to defeat a motion for summary judgment on his taking claim, we do not
address the County's argument that Matichuk lacked standing to assert his claim
 because he is not the current owner of the property.
                                            -8-
No. 69105-8-1/9




viable use of his property, the trial court did not err in granting summary judgment on

Matichuk's taking claim.

      We affirm.




WE CONCUR:




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