                                                                                                                     FILED
                                                                                                              COURT OF APPEAL.
                                                                                                                   DIVISION JJ
                                                                                                          2214 DEC 16
                                                                                                                          Ail 8: 36
                                                                                                          ST       OF      HIP   ON
      IN THE COURT OF APPEALS OF THE STATE OF WASHI

                                                      DIVISION



 MARCUS           GERLACH            and    SUZANNE           L.                         No. 45571 -4 -II
 GERLACH, husband and wife,


                                           Appellants,


          v.



 CITY        OF      BAINBRIDGE                  ISLAND, -     a                  UNPUBLISHED OPINION
 municipal corporation and DOES 1 - 10,

                                           Respondents.




          LEE, J. —       Marcus and Suzanne Gerlach appeal the trial court' s order dismissing the

Gerlachs'      declaratory judgment         action against     the city    of   Bainbridge Island ( the   City).   Because


the   appearance     of   fairness doctrine does         not   apply to decisions         made   by   the "   City Planning

Department,"       there is no legal basis for the Gerlachs' claims, and the trial court properly dismissed

their declaratory judgment action. We affirm.

                                                             FACTS


          The Gerlachs' history with the City began in 2005, when the Gerlachs applied for a permit

to install   a   mooring   buoy.     The Gerlachs      withdrew      their     permit request several months       later. In


2010, the Gerlachs filed       another permit application            for   a   mooring   buoy.   This permit application


was denied. After the permit was denied, the Gerlachs appealed and made numerous allegations

of misconduct       by    members of       the   City Planning     Department.        The Gerlachs also filed a federal


lawsuit   against   the   City for   violation of    their   civil rights.
No. 45571 -4 -II




         The City negotiated a settlement with the Gerlachs regarding the permit application.

Ultimately,    the Gerlachs   obtained a permit   for   a   mooring   buoy.   The Gerlachs continued their


federal litigation, but the U.S. District Court dismissed their civil rights claims.

         In 2012, the Gerlachs filed a shoreline substantial development permit (S SDP) application


to build a dock, a gate house, a boat hoist, a retaining wall, and a hard -armored (concrete) bulkhead.

During the permit review process, the Gerlachs made numerous allegations of unfair treatment by

the   City Planning   Department.   Before the City Planning Department issued a decision on their

SSDP application, the Gerlachs filed an action for declaratory relief in Kitsap County Superior

Court.   The Gerlachs requested that the trial court issue a declaratory judgment finding that the

City Planning Department violated the appearance of fairness doctrine by considering their SSDP

application.    The Gerlachs requested that the trial court order the City to transfer their SSDP

application to Kitsap County for review and approval.

         Before the City filed an answer to the Gerlachs' complaint for declaratory relief, the City

Planning Department issued its decision on the Gerlachs' SSDP application. The City Planning

Department granted a permit for the dock, gatehouse, and retaining wall but denied the permit to

build a concrete bulkhead. The Gerlachs appealed the City Planning Department' s decision to the

city hearing examiner. The Gerlachs' administrative appeal is stayed pending the outcome of this

litigation.


         The City filed an answer to the Gerlachs' complaint for declaratory relief and requested

that the case be dismissed. The Gerlachs then filed a motion for summary judgment. In response,

the City requested that summary judgment be granted in favor of the City as a nonmoving party.

The City argued that, as a matter of law, the Gerlachs' action must be dismissed because ( 1) the



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No. 45571 -4 -II



Gerlachs had completely adequate alternative remedies, and (2) the appearance of fairness doctrine

did not apply to the initial consideration of an S SDP application by the City Planning Department.

The trial court agreed with the City, granted summary judgment in the City' s favor, and dismissed

the Gerlachs' declaratory judgment action. The Gerlachs filed a motion for reconsideration, which

the trial court denied. The Gerlachs appeal.


                                                      ANALYSIS


           Due to the contentious nature of this case and the Gerlachs' insistence on arguing the

underlying substantive nature of their allegations against the City, it is important to be clear about

what question        is before this    court.    The dispositive question is whether the Gerlachs met the


prerequisite for filing a declaratory judgment action by demonstrating that the appearance of

fairness doctrine applies to decisions made by the City Planning Department. As explained below,

the trial court properly determined that the appearance of fairness doctrine does not apply to the

initial    consideration    of   the   Gerlachs'     SSDP application by the City Planning Department.

Therefore, there is no legal basis to provide the Gerlachs with relief, and the trial court properly

dismissed the Gerlachs' declaratory judgment claim.'

           We review the trial court' s order on summary judgment in a declaratory judgment action

de   novo.   Internet   Cmty. & Entm' t Corp. v. Wash. State Gambling Comm' n, 169 Wn.2d 687, 691,

238 P. 3d 1163 ( 2010).          Summary judgment is appropriate if, when viewing the facts in the light

most favorable to the nonmoving party, no genuine issues of material fact exist and the moving



1 The Gerlachs appeal both the trial court' s order granting summary judgment in favor of the City
and   the trial    court' s order   denying     their motion   for   reconsideration.   However, because the trial
court' s order granting summary judgment in favor of the City and dismissing the case was proper.
there     was no   basis for granting   a motion     for   reconsideration.
No. 45571 -4 -II



party is    entitled   to judgment     as a matter of   law. CR 56( c).   Summary judgment may be entered in

favor of the nonmoving party if there are no disputed facts and as a matter of law the nonmoving

party is entitled to summary judgment dismissing the action. Leland v. Frogge, 71 Wn.2d 197,

201, 427 P. 2d 724 ( 1967) ( "           While there is authority for granting summary judgment for a

nonmoving party ...,            it would be expected that such judgment would be either one of dismissal,

or   for   relief sought   by   or   uncontestedly due that   second   party. ");   see also Impecoven v. Dep' t of

Revenue, 120 Wn.2d 357, 365, 841 P. 2d 752 ( 1992); Rubenser v. Felice, 58 Wn.2d 862, 866, 365


P.2d 320 ( 1961).


            Here, the trial court concluded that the Gerlachs had no legal basis for relief because the

appearance of fairness doctrine, codified in RCW 42. 36. 010, does not apply to the initial

consideration of a permit when the permit decision is made without a quasi-judicial action in an


open, public hearing. The trial court was correct. The appearance of fairness doctrine applies to

judicial or quasi-judicial actions where there is an open, public hearing or contested proceeding.

RCW 42. 36. 010.           The Gerlachs have not presented any legitimate basis for applying the

appearance of fairness doctrine to a purely administrative decision made by executive branch

officials without an open, public hearing or contested proceeding.

            The appearance of fairness doctrine, as it applies to land use decisions, is codified in

chapter 42. 36 RCW. RCW 42. 36.010 strictly defines the application of the appearance of fairness

doctrine in land use decisions:


            Application of the appearance of fairness doctrine to local land use decisions shall
            be limited to the quasi-judicial actions of local decision -making bodies as defined
            in this section. Quasi-judicial actions of local decision -making bodies are those
            actions of the legislative body, planning commission, hearing examiner, zoning
            adjuster, board of adjustment, or boards which determine the legal rights, duties, or



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No. 45571 -4 -II



         privileges of specific parties in a hearing or other contested case proceeding. Quasi -
         judicial actions do not include the legislative actions adopting, amending, or
         revising comprehensive, community, or neighborhood plans or other land use
         planning documents or the adoption of area -wide zoning ordinances or the adoption
         of a zoning amendment that is of area -wide significance.

Under the plain language of RCW 42.36.010 the appearance of fairness doctrine does not apply to

administrative decisions made by the City Planning Department without an open, public hearing

or contested proceeding.


         Statutory   interpretation is    a question of   law that   we review    de   novo.   Clallam County v.

Dry   Creek Coal., 161 Wn. App. 366, 385, 255 P. 3d 709 ( 2011) (            citing Wenatchee Sportsmen Ass 'n

v.   Chelan   County,   141 Wn.2d 169, 175, 4 P. 3d 123 ( 2000)). When the plain language of the statute


is unambiguous, our inquiry ends. Dry Creek Coal., 161 Wn. App. at 385 ( citing Bravo v. Dolsen

Cos., 125 Wn.2d 745, 752, 888 P. 2d 147 ( 1995)). "              Unambiguous statutes are not subject to


interpretation, one looks at the plain language of the statute without considering outside sources."

Durland v. San Juan       County,   174 Wn. App. 1, 22 -23, 298 P. 3d 757 ( 2012) ( citing      State v. Delgado,

148 Wn.2d 723, 727, 63 P. 3d 792 ( 2003)).


         The    plain   language    of   RCW 42. 36. 010 is    clear   and   unambiguous.       In order for the


appearance of fairness doctrine to apply, the decision must be a quasi-judicial action made by a

local decision -making      body. And, a quasi-judicial action requires a hearing or other contested

case proceeding. RCW 42. 36. 010.

         Here, there was no quasi-judicial action because there was no hearing or contested case

proceeding.      The initial consideration of the Gerlachs' SSDP application was made by the City

Planning Department after reviewing the Gerlachs' application materials and public comments.

The Gerlachs argue that consideration of their SSDP application was a public hearing because the



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No. 45571 -4 -II



application was posted publically and members of the public were invited to comment. However,

they cite no authority to support their proposition that posting an application for public comment

transforms the City Planning Department' s consideration of a permit application into a hearing or

other contested    proceeding. DeHeer v. Seattle Post -Intelligencer, 60 Wn.2d 122, 126, 372 P. 2d


193 ( 1962) ( " Where no authorities are cited in support of a proposition, the court is not required


to search out authorities, but may assume that counsel, after diligent search, has found none. ").

Accordingly, the Gerlachs cannot show that consideration of their SSDP application was a quasi -

judicial action.


          Moreover, the City Planning Department is not a legislative body, planning commission,

hearing examiner, zoning adjuster, or board that determines legal rights, duties, or privileges of

parties in a hearing or contested case proceeding. Therefore, any action taken by the City Planning

Department is not an action taken by a local decision -making body as defined in RCW 42.36. 010.

Accordingly, RCW 42. 36.010 does not apply to the actions of the City Planning Department.

          The Gerlachs argue that some cases imply that the appearance of fairness doctrine applies

to land   use   decisions made before   administrative   hearings.   But the Gerlachs' argument lacks


merit.    The legislature has specifically prohibited us from expanding the application of the

appearance of fairness. RCW 42. 36. 100 is explicit:


          Nothing in this chapter prohibits the restriction or elimination of the appearance of
          fairness doctrine by the appellate courts. Nothing in this chapter may be construed
          to expand the appearance of fairness doctrine.


Based on the legislature' s clear directive, we do not have the authority to apply the appearance of

fairness doctrine to actions other than quasi-judicial actions by local decision -making bodies. To




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No. 45571 -4 -II




the extent that any case cited by the Gerlachs provides otherwise, we must conclude that it was

wrongly decided.

        Thus, because the appearance of fairness doctrine codified in RCW 42. 36. 010 does not


apply to decisions made by the City Planning Department, there is no legal basis for the Gerlachs'

claim. Accordingly, we affirm the trial court' s order granting summary judgment in favor of the

City and dismissing the Gerlachs' declaratory judgment action.

        A majority of the panel having determined that this opinion will not be published in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:




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