                                                                                                             HHLEO
                                                                                                     COURT OF APPEALS
                                                                                                           DIVISION


                                                                                                    2015 APR 114

                                                                                                     STATE
                                                                                                      B




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

WOODS VIEW II, LLC, a Washington limited                                               No. 44404 -6 -II
liability company; and DARLENE A. PIPER,
a single woman,



          Appellant and Cross -Respondent,


          v.



KITSAP COUNTY, a Washington                                                      UNPUBLISHED OPINION
municipality,


          Respondent and Cross -Appellant.


         JOHANSON, C. J. —            Appellants Woods View II, LLC ( WVII) and Darlene Piper appeal


from the superior court' s grant of summary judgment in Kitsap County' s ( the County) favor on

WVII'    s claims      of negligence,      tortious interference,    and    takings.       These claims arise from the


alleged delay of several permits and governmental decisions required for a project of WVII. WVII

and   Piper    argue   that ( 1)   their   claims are not   barred   by    the   statute   of   limitations, ( 2) Piper has


individual standing, (3) the County' s communications were not immunized as petitioning activity,

4) the   County     negligently delayed processing their development                permit, (     5) the County tortiously

interfered with the various permitting processes involved in the project, and ( 6) the County' s

actions constituted a       taking. On cross appeal, the County argues that ( 7) the Land Use Petition

Act ( LUPA),      ch.    36. 70C RCW, barred WVII'          s claims.      Although        we agree with    WVII that its
No. 44404 -6 -II



claims are not barred by the statute of limitations, the trial court' s summary dismissal of WVII' s

claims is affirmed.


                                                    FACTS


        This case involves a failed residential development, four decisions concerning the real

property,   and   the timeliness of these decisions.          Because this case is factually complex with a

voluminous record, we begin by 'establishing the basic factual background and explaining the

applicable administrative framework. Then, we discuss the facts that give rise to WVII' s claims.


Finally, we discuss the procedural history.

                                I. BACKGROUND: THE WOODS VIEW PROJECT


        The    appellants are    WVII   and   its managing     member, sole owner, and agent   Piper. WVII


intended to build a residential development called " Woods View" on 19. 76 acres in small " legacy

lots "1 in south Kitsap County. Piper was personally invested in the project: she was the sole owner

of the construction company that would have served as the general contractor, she personally

funded $ 350, 000    in development expenses, and she personally guaranteed a $ 2, 927, 000 loan to

WVII.


        The Woods View           project   was   highly   controversial   in the community.     The county

commissioners received many complaints about the development. Concerned citizens wrote to the

County to complain about the project. One constituent characterized the development as a " mobile

home   park."     Clerk' s Papers ( CP) at 445. The Woods View project was subjected to scrutiny by



1 Each lot measures approximately 40 feet wide and 100 feet deep, that is, 1 / 10th of an acre. They
are called "   legacy   lots"
                         because they were platted in 1909 and are not compliant with current
regulations                development to a density of one unit per five acres. An owner is
                which restrict


permitted to develop legacy lots, subject to certain restrictions.

                                                          2
No. 44404 -6 -II



not only the county commissioners, but also the governor' s office, state legislators, and state

agencies.




            The County was sensitive to these concerns because it had faced frequent criticism for its

land      use   decisions in the    past.   CP   at   1265 (   County          commissioner noted   in his deposition, "[ T] he


County gets picked on more than any other county in terms of any of the land use actions that it

takes. ").       In fact, it had very recently been challenged before the Growth Management Hearings

Board for failing to regulate " urban service" in rural areas. 2 See Harless v. Kitsap County, No. 07-
3 -0032, 2007 WL 4181033 ( Cent. Puget Sound Growth Mgmt. Hr' gs Bd. Nov. 15, 2007).


            In an e- mail to a constituent who was upset about Woods View, County Commissioner

Steve Bauer indicated that " the County staff and elected officials believe that they have actively

worked          to find   ways within   the   law     to   deny   this   project. .   I don' t think anyone can look at this


project and conclude that it is either good for the area or consistent with current land use


standards."         CP at 436 ( emphasis added).


                                              II. BACKGROUND AND HISTORY


            At issue      are   four decisions regarding ( 1)            a "   Site Development   Activity   Permit" ( SDAP),


 2)   a   State Environmental          Policy    Act ( SEPA),       ch.    43. 21C RCW,      review, ( 3)   state approval of a


 Large On -Site Sewer System" ( LOSS),                      and (   4)   a modification    to the LOSS decision.      All four


decisions were made in WVII' s favor and WVII does not challenge the decisions themselves.


Rather, WVII alleges that the permits or decisions were granted too slowly as a direct and indirect

result of the County' s actions. We briefly explain the pertinent history below.



2 The challenge was not successful. Harless v. Kitsap County, No. 07 -3 - 0032, 2007 WL 4181033,
at * 5 ( Cent. Puget Sound Growth Mgmt. Hr' gs Bd. Nov. 15, 2007).


                                                                     3
No. 44404 -6 -II



                               A. SITE DEVELOPMENT ACTIVITY PERMIT ( SDAP) AND
                            STATE ENVIRONMENTAL POLICY ACT ( SEPA): 2006 -2007


            The Woods View project required the County Department of Community Development

 DCD) to issue         a   SDAP.   Kitsap County Code ( KCC) 12. 10. 030. Similarly, local government is

obliged     to carry   out a   SEPA   review and        issue   a   determination    of significance ( DS),   a determination


of nonsignificance ( DNS), or a mitigated                 determination       of nonsignificance ( MDNS).          City ofFed.

Way v.      Town &     Country Real Estate, LLC,            161 Wn.       App. 17,   53, 252 P. 3d 382 ( 2011) (   citing Moss

v.   City   of Bellingham, 109 Wn.        App. 6,         15, 31 P. 3d 703 ( 2001), review denied, 146 Wn.2d 1017


 2002)); WAC 197- 11- 310( 5)(          a), ( b),   - 340, - 350( 3);     RCW 43. 21C. 030. Under the existing County

ordinances, the County was required to provide a final decision within 78 days of the date it
                                             3
deemed the      application complete.             Former KCC 21. 04. 110( A) (1998). 4


            WVII completed its SEPA " application" on April 14, 2006, and its SDAP application on

                   5
May     5, 2006.        The    County issued        a   MDNS         on   January    4, 2007.   The SDAP was issued on


December 10, 2007. Community groups appealed both decisions to the hearing examiner and the
                                                                                       6
Kitsap County          Superior Court, but their          appeals were rejected.           According to WVII, the hearing



3 As we further discuss in the statute of limitations section, the time limit is tolled when the County
requires     the   applicant     to " correct plans, perform studies, or provide additional information."
Former KCC 21. 04. 110( A)(4)(           a) (    1998).


4 This ordinance was repealed by Kitsap County Ordinance No. 490 ( 2012).

5 This would make the County' s action on the SEPA application due 78 days from April 14, and
action on      the SDAP        application   due 78 days from
                                                    May 5— excepting periods during which the
applicant was required to submit additional information. However, WVII complains only that the
SDAP was issued late.


6 WVII relied on the County' s delay in its argument against these appeals, stating that " the County
was    doing   a good and careful      job." CP at 1360.


                                                                     4
No. 44404 -6 -II



examiner was also tardy, hearing argument on March 20, 2008, and filing a decision on June 6,

2008. 7

                                       B. ORIGINAL LOSS PROPOSAL: 2006 -2008


          A LOSS is        a   type   of waste   treatment   system   that serves      multiple       lots. Unlike the SDAP


and SEPA review, the LOSS was not absolutely necessary for the project to move forward, but it

would     have   allowed        Woods View to double its         density. With the LOSS, Woods View could

support    78   single - family       homes.   Without the LOSS, Woods View could support only 39 homes

using individual septic systems.

          The state Department of Health ( DOH) is responsible for evaluating LOSS applications.

WAC 246 -272B- 02150.                 The County has no direct authority to approve or disapprove a LOSS

system. Nevertheless, the then -existing administrative code required a LOSS to comply with local
                                                                                                  8
land   use standards.      See former WAC 246 -272B- 08001( 2)(               a)(   ii) (2003).       Accordingly, while the

DOH always had primary responsibility for passing on a LOSS application, it communicated with

the County regarding WVII' s application for a LOSS permit, as we explain further below.

          At the relevant time, the DOH rules imposed requirements on the LOSS system' s


management        depending       on    how the land   serviced   by    the LOSS       would      be   used.   Where the lots


were individually owned, a LOSS could only be managed by a public entity or a private operator

guaranteed       by   a public   entity. Former WAC 246 -272B- 08001( 2)( a)( vi)(A)(I) (2003).                     But if the




7 WVII asserts that a former county ordinance, in effect during the relevant time period, required
hearing    examiners       to   make a    decision   within   14 days   of   hearing    argument.        The current version
imposes no such deadline. KCC 21. 04. 080.


8 This section of the Washington Administrative Code has since been repealed by Wash. St. Reg.
11 - 12 -050 ( Jul. 1, 2011).
No. 44404 -6 -II



lots were under single ownership, either a public entity or a private entity could manage the LOSS.

Former WAC 246- 272B- 08001( 2)(             a)( vi)( A)(II)   (2003).       One such public entity was the Karcher

Creek Sewer District (KCSD).             WVII initially approached KCSD to manage the LOSS for Woods

View, and on September 29, 2006, KCSD issued a " Binding Sewer Availability" letter good for

one year. But on December 1, 2006, WVII indicated that it had decided to use a " DOH approved


private management entity" instead. CP at 135.

            WVII   requested a   LOSS     permit at some       time      in 2006. DOH granted the LOSS permit on


March 19, 2008, conditioned on the Woods View lots being held by a single owner. At first, WVII

agreed to the condition and recorded a " Covenant to Retain Single Ownership" on the same day.

But WVII soon found the single -owner condition a barrier to financing: it approached the Legacy

Group ( Legacy) for a business loan, but Legacy " liked the project as depicted with an individual

owner model" and       found DOH' s        conditions made         the   project a " non- starter."   CP at 125. As such,


WVII decided to petition DOH for a modification to its LOSS permit that would allow the lots to

                         9
be   sold   individually.

                                 C. MODIFIED LOSS PROPOSAL ( 2009 -2010)


            WVII submitted all necessary documents for its modified LOSS proposal in November

2009.       Richard Benson, the DOH engineer who initially worked on the Woods View permit,

indicated that DOH could make the change " in a matter of a week to two weeks except that if the


county had      objections   to it, he   said, quote -unquote, `      I' m going to have to dot my i' s and cross my




9
 Specifically, the new LOSS proposal involved management by a private entity guaranteed by a
public entity. This would bring the LOSS under former WAC 246 -272B- 08001( 2)( a)( vi)(A)(I)
and allow individual ownership of the lots.

                                                               6
No. 44404 -6 -I1



is   and we'   ll have to   go   through the   full   process and    it   could   take up to   six months   to   a year.'"   CP


at 1846. The modified LOSS was not approved until August 24, 2010.


                               III. ALLEGED WRONGFUL ACTIONS BY THE COUNTY


         WVII alleges that the County caused the aforementioned delays as part of a deliberate plan

to   undermine    the Woods View          project.     While WVII points to many instances of the County' s

alleged intermeddling, its facts can be reduced to three main courses of conduct: communications

with   DOH,     communications with         third     parties, and   internal delays. We explore these courses of


conduct in turn.


                                          A. COMMUNICATIONS WITH DOH


         In an internal County e -mail, a deputy prosecutor proposed " a `loop' with the state to ensure

that the county     is   not   allowing   urban   development in          a rural area."   CP   at   433.   Specifically, the

County' s attorney told her colleagues that

         even    though [ the Woods View              project]   is "   vested"    it is not conforming to our
         current plan. Thus, if the state were to inquire of DCD whether this meets our plan
          DCD could say no, and the state would have to deny it.

CP at 433.


         As described above, the state did not deny the LOSS permit. Still, the record indicates that

the " issue of compliance with current land use standards" was a " significant issue that [ DOH was


grappling      with" and was a "     relatively important issue in the final            approval."     CP   at   1631.   During

the pendency of both of WVII' s LOSS applications, the County remained in contact with DOH.

On November 14, 2007, the deputy prosecutor e- mailed DOH a Growth Management Hearings




                                                                 7
No. 44404 -6 -II



Board decision, which Benson understood to mean " they all want me to enforce [ the County' s land

use standards]   directly. "10 CP at 663.

        In a letter dated December 3, 2007, the director of the county DCD referenced the same

Growth Management Hearings Board decision, which explained that land -use densities as


determined by the County in its GMA Land Use Plan and zoning are the controlling factor in any

review for septic systems, even if review is conducted by the state. He told DOH that WVII did

not meet current designations, but was a legal nonconforming use because the proposed LOSS was

to serve lots that, while legally created prior to the enactment of the GMA, did not meet current

county comprehensive plan or zoning designations for the area. DCD closed the letter by stating

that it was merely informing DOH as to the Growth Management Hearings Board' s decision, but

that it was not advocating any specific action, leaving that to the state' s discretion.

        Then,    when   DOH   was " near approval after a   lengthy   review process" (   CP   at   343), county


representatives met with      DOH   on   March 12, 2008.    The County told DOH that the Woods View

project should not be approved


        because the over -all development is not consistent with the County' s and GMA' s
        land use designations. They assert this violates the State' s duty to ensure projects
        are consistent with local planning.
                    However, the County sees that it has no authority to deny the project.

CP at 340. The County did request that DOH condition the LOSS permit on single ownership of

the Woods View lots.




10 As Benson later clarified at deposition, he understood the e -mail to mean that he should not
approve the LOSS because it did not conform with the County' s land use requirements.

                                                     8
No. 44404 -6 -II



          As described above, DOH issued WVII' s LOSS permit with the requested single -


ownership condition a week after the meeting.

          When WVII made its modified LOSS proposal, the County' s attorney sent the Attorney

General' s Office a series of e -mails between September 3 and September 10, 2009, expressing

concern about the amendments. The County' s attorney believed that WVII' s requested permitting

change was         an '    after   the fact'   change,    outside     the   public   process,   and   is [   sic] essentially is

circumventing the law. We feel it              cannot    be   approved and are       hereby lodging our objections."        CP


at351.




          On September 3, 2009, Benson e- mailed the county DCD to check if WVII would be " a

violation of county code" and confirm whether DCD would oppose the development. CP at 417.

DCD e- mailed back on September 15 to state that " urban levels of service are being provided

outside an urban growth area, which is inconsistent with the County' s comprehensive plan and the

Growth Management Act." CP at 417. That same month, DOH required WVII to submit renewed


proof    that it   was    in   compliance with    local land     use standards.        In March 2010, DOH transferred


WVII' s LOSS application from Benson to a different examiner who was not aware ofthe County' s

objections.        It was this second examiner who ultimately approved the revised LOSS five months

later.


                                      B. COMMUNICATIONS WITH THIRD PARTIES


          In September of 2007, KCSD did not renew its agreement to manage the Woods View

LOSS.       WVII alleges that this nonrenewal occurred because the County intimidated KCSD.

Specifically, on June 7, 2007, county representatives met with KCSD and opined that KCSD was




                                                                  9
No. 44404 -6 -II



not permitted to own or operate a LOSS in a rural area. The County was concerned about being

sued by neighboring property owners. KCSD disagreed with the County' s legal position.

         The County indicated that " if the District decided to own and /or operate the LOSS, Kitsap

County   could not   tell KCSD         not   to."   CP   at   835.    But the County then declared a moratorium to

preclude the use of a LOSS in rural areas, thereby preventing entities like KCSD from participating

in projects like Woods View.            KCSD determined that it "did not wish to own or operate the LOSS


for Woods View if          Kitsap County had             an    ordinance     prohibiting it."   CP      at   835.   KCSD' s


withdrawal left WVII without a public operator for its LOSS.


         Furthermore, WVII argues that it would have received development loan financing from

Legacy but for     the   County' s     actions.     Legacy had committed to a loan but had second thoughts

when, as part of its due diligence, Legacy had a conference call with county officials. The County

told Legacy that " the ownership change was a ` big change of use' and that it could necessitate

hearings   and   delay   timelines."     CP at 124. But the County did not know what DOH was going to

do. On the other hand, Legacy also indicated that

           t]he County did not give us assurances of how the DCD process would play out
              we did not feel as though the County actors tried to discourage our consideration
         of loaning to Woods View II LLC and did not perceive the County as trying to
         inject itself into our business relationship with Woods View II LLC or Ms. Piper.

CP at 124 -25. Following the call with the County, Legacy declined to fund the loan.

                                             C. COUNTY' S INTERNAL DELAY


         WVII alleges that the County was purposely slow to issue its SDAP permit, but points to

only   one specific act
                            by   the   County. On October 13, 2006, Kitsap County Administrator Cris

Gears sent the state Department of Commerce, Trade, and Economic Development (CTED) a letter


expressing    concern whether      the WVII LOSS              would   be   a "' public sewer system '    pursuant to WAC


                                                                 10
No. 44404 -6 -II



242 -272 -01001 [    sic],    and whether it would allow " the development of urban densities outside an


urban    growth area     in   violation of        RCW 36. 70A. 110( 4)         and   RCW 57. 16. 010( 6)."       CP at 322.


Pending a response to that letter, the County allegedly suspended the processing of WVII' s SDAP

application. CTED responded to Gears' s letter on November 3, 2006. 11

                                                 IV. PROCEDURAL HISTORY


          But for the aforementioned delays, WVII asserts that the Woods View lots could have been

available   for   sale as    early   as   May     2008.     As it is, by 2009, the real estate market had become

unfavorable.      The Woods View business loan                     went   into default.    On December 31, 2009, the


Woods View property            went   into foreclosure.         Piper herself went bankrupt in May 2010 and was

discharged.       WVII   estimates        that the delays       cost    WVII   somewhere    between $ 2. 55 million and


 4. 37   million and   personally         cost   Piper   somewhere      between $ 1. 39   million and $   1. 56 million.


          On October 14, 2009, WVII                        Piper                                                           On
                                                                                           claim12



                                                     and            served a notice of               on   the   County.

December 18, 2009, WVII and Piper filed a lawsuit in superior court asserting federal due process

and   takings   claims as well as state            law torts.    The County removed the suit to the U.S. District

Court for the Western District of Washington in Tacoma. There, the judge dismissed the federal

constitutional claims with prejudice and dismissed the state claims without prejudice. A year later,

the Ninth Circuit Court of Appeals affirmed this decision on different grounds. The Ninth Circuit


disagreed with the ripeness analysis, but agreed with the each subsequent ruling. Specifically, the




11 CTED told Gears that " if the proposed on -site system serves urban levels of development, we
believe it is consequently an urban level                of service ...   which is contrary to the purpose of the Rural
Residential zone." CP at 610.


12 Former RCW 4. 96.020 ( 2009).

                                                                   11
No. 44404 -6 -II



Ninth Circuit held that WVII' s substantive due process claims failed because " it is at least fairly

debatable that Appellees' delays in issuing the SDAP and SEPA approvals were rationally related

to a legitimate governmental interest in ensuring that local development complied with state law."

CP at 1476.


          On July 18, 2011, WVII refiled its complaint in state court alleging negligence, tortious

interference, and unconstitutional takings and requesting a declaratory judgment and injunctive

relief.13 The County filed a motion for summary judgment to dismiss all of WVII' s claims, which

the superior court denied.


          In a second motion for summary judgment, the County requested dismissal of WVII' s

tortious interference    and negligence claims.           In a supplemental brief to the superior court, the


County    also requested   dismissal   of   the takings   claim.   On December 12, 2012, the superior court


dismissed all of WVII' s claims. This appeal followed. The County raised a LUPA issue on cross

appeal.



                                                   ANALYSIS


          This case involves multiple theories of liability that apply to many of the same facts. We

discuss   procedural   issues first. Then,   we   discuss the three   substantive   issues —negligence, tortious


interference, and takings.


                                            I. STANDARD OF REVIEW


          A grant of summary judgment is reviewed de novo. Mohr v. Grantham, 172 Wn.2d 844,

859, 262 P. 3d 490 ( 2011).    We will affirm the summary judgment only if there is no genuine issue



13 The parties have stipulated to dismiss the claims for declaratory judgment and injunctive relief
as well as the County' s counterclaim for malicious prosecution.

                                                           12
No. 44404 -6 -II



of material   fact   and   the moving party is         entitled     to judgment   as a matter of   law.   Qwest Corp v.

City   of Bellevue, 161 Wn. 2d 353, 358, 166 P. 3d 667 ( 2007).                        However, the party opposing

summary judgment " may not rest upon the mere allegations or denials of his pleading, but .. .

must set   forth   specific   facts showing     that there     is   a genuine   issue for trial." CR 56( e).


         On review of a summary judgment, the evidence is reviewed in the light most favorable to

the nonmoving party, and all reasonable inferences from that evidence are drawn in favor of the

nonmoving party. Qwest, 161 Wn.2d                 at   358.    If reasonable minds can differ on facts controlling

the outcome of the litigation, then there is a genuine issue of material fact and summary judgment

is improper.       Ranger Ins. Co..      v.   Pierce    County,       164 Wn. 2d 545, 552, 192 P. 3d 886 ( 2008).


Summary judgment is also improper if the issue at bar requires the weighing of " competing,

apparently    competent evidence,"            in which case this court will reverse and remand for a trial to


resolve the factual issues. Larson v. Nelson, 118 Wn. App. 797, 810, 77 P. 3d 671 ( 2003).

                                              II. STATUTE OF LIMITATIONS


         The County argues that WVII' s claims for negligence and tortious interference are barred

by the three -year statute of limitations. The County argues that it was required to issue a decision

on the SDAP application and SEPA threshold decision by July 22, 2006, and that its failure to do

so started the statute of limitations running, meaning that the statute of limitations expired on July

22, 2009.     WVII argues that its tortious interference claim did not accrue until late October 2006

when    it first became       aware of   the facts that       would support a      tortious interference   claim.   WVII


further argues that its negligence and tortious interference claims arising out of the County' s delay

did not accrue until December 2006 as the County' s requests for further information extended the

statutory deadline for the County to process its application and, thus, the time when the County


                                                                13
No. 44404 -6 -II



was in violation of the ordinance. 14 We agree with WVII and hold that WVII' s claims are not

barred by the statute of limitations.' 5
          The     statute of   limitations for     negligence and     tortious interference is three    years.    RCW


4. 16. 080( 2).    The statute of limitations begins to run when the plaintiff has a right to seek recovery

in the   courts.    Malnar     v.   Carlson, 128 Wn.2d 521, 529, 910 P. 2d 455 ( 1996).            That is, the statute


of limitations does not begin to run until every element of an action is susceptible of proof,

including the occurrence of actual loss or damage. Haslund v. City ofSeattle, 86 Wn.2d 607, 619,

547 P. 2d 1221 ( 1976); Mayer            v.   City of Seattle,   102 Wn.   App. 66,   76, 10 P. 3d 408 ( 2000),   review



denied, 142 Wn.2d 1029 ( 2001).


          WVII bases its claims, in part, on the County' s delay in issuing the SDAP and in affirming

the SDAP issuance on appea1. 16 As WVII points out, the County exceeded time limits imposed

by its own    ordinances.      See former KCC 21. 04. 110( A)(4)( a)         (   1998). As Division One of this court


has recognized, where a claim arises out of a permitting body' s failure to comply with statutory

time limits, the cause of action does not accrue until the time limit is actually exceeded. Birnbaum

v. Pierce County, 167 Wn. App. 728, 734, 274 P.3d 1070, review denied, 175 Wn.2d 1018 ( 2012).




14 WVII argues, and the County does not dispute, that the 10 -year statute of limitations for its
taking claim has not run.
15
   Accordingly, we do not reach WVII' s alternative theory that the continuing tort doctrine
prevented the statute of limitations from running until the County' s allegedly tortious conduct
ended.




16 The County does not appear to dispute that the hearing examiner' s failure to timely make a
decision on the SDAP appeal fell within the statute of limitations.


                                                                 14
No. 44404 -6 -II



            Here, WVII completed its SDAP application on May 5, 2006. Former KCC 21. 04. 110( A)

required a      decision   within   78 days     of   the   application    becoming    complete.    As the County points

out,   that   would make       its SDAP decision due         on   July 22,   2006 —more than three years before WVII


submitted       its   claims   to the    County.      But that is not the whole story because former KCC

21. 04. 110( A)(4)( a) also excludes


              a] ny period during which the applicant has been required by the county to correct
            plans,    perform    studies,    or provide      additional      information.    The period shall be
            calculated from the date the county notifies the applicant of the need for additional
            information to the earlier of either: ( 1) the date the county determines whether the
            additional information provided satisfies the request for information; or (2) fourteen
            days after the date the information has been provided to the county.

Here, the County made two such requests for additional information. First, on or prior to July 13,

2006, the County requested information about " two possible ` depressions' on the property which

may have been          protected streams."      CP at 1955. WVII provided the requested information on July

19, 2006.       The County did not respond, so the time limit would have begun to run 14 days after

July    19, 2006 - that is, August 2, 2006.


            But on July 31, 2006, the County again requested additional information. WVII provided

the    requested      information   on   November 20, 2006.             Again, the County did not respond, meaning

that the time limit did          not start   running       again until   14 days    after   November 20, 2006 —that is,


December 4, 2006.


            Accordingly, the 78 -day time limit on the County' s permitting decisions began to run on

or about May 5 and excluded the period between July 13, 2006 and August 2, 2006, as well as the

period between July 31, 2006 and December 4, 2006. This calculation means that approximately

10    of   the 78 days    remained.      Therefore, any claim for delay of the SDAP permit did not accrue



                                                                   15
No. 44404 -6 -II



until December 13, 2006, the earliest date the County was in violation of its own time limit

ordinance. That is less than three years before WVII presented its tort claims on October 14, 2009.


         The County' s only response to this argument is that it was not raised until the second
                                                                                                              17
supplemental     brief in the   superior court and contradicted             WVII'      s earlier pleadings.        But "[ w]here


evidence raising issues beyond the scope of the pleadings is admitted without objection, the

pleadings will    be deemed       amended     to   conform     to the   proof."       Jensen v. Ledgett, 15 Wn. App. 552,

555, 550 P. 2d 1175 ( 1976) ( citing Robertson            v.   Bindel, 67 Wn.2d 172, 406 P. 2d 779 ( 1965)). The


County did not object to WVII' s tolling argument and, thus, waived the issue.

         WVII' s negligence claim arising out of the delay on its SDAP application was not time

barred. Because WVII' s tortious interference claim arises in part from the delay, it also complies

with   the   statute of   limitations.     We conclude that WVII' s negligence and tortious interference


claims are not barred by the statute of limitations.

                                                      III. STANDING


         The County argues that Piper has no standing to litigate any harm WVII suffered because

she was a mere shareholder and guarantor of the WVII LLC. We agree and, therefore, affirm the


superior court' s dismissal of Piper' s claims.


         Generally,   a   party   can    only litigate   a claim     if   she   has   a "` present, substantial     interest ' in


its   outcome and can show        that   she will   be "` benefited       by the relief granted. "' State ex rel. Hays v.




17 The County also argues that the contention that the delay claim accrued in December is
inconsistent with the claim that it was wrongful to suspend processing of the SDAP starting in
October 2006. Perhaps, but this does not make WVII' s statute of limitations analysis any less
correct. Furthermore, as WVII argues, the County could have continued processing other portions
of the SDAP application even while waiting on a response to Gears' s letter.

                                                                16
No. 44404 -6 -II



Wilson, 17 Wn.2d 670, 672, 137 P. 2d 105 ( 1943) ( quoting 39 AM. JUR. Parties § 10, at 860 ( 1942)).


But shareholders and guarantors attempting to assert standing in the name of a corporation or

principal face a higher hurdle.


           Shareholders are usually not allowed to bring an individual direct cause of action for an

injury inflicted upon the corporation or its property by a third party. United States v. Stonehill, 83

F. 3d 1156, 1160 ( 9th Cir.) ( citing Cohen           v.   Beneficial Indus. Loan       Corp.,   337 U.S. 541, 548, 69


S. Ct. 1221, 93 L. Ed. 1528 (         1949); Sutter v. Gen. Petroleum Corp., 28 Cal. 2d 525, 530, 170 P. 2d

898 ( 1946); Jones     v.   H.F. Ahmanson & Co., 1 Cal. 3d 93, 81 Cal. Rptr. 592, 597 -99, 460 P. 2d 464


 1969)),    cert.   denied, 519 U. S. 992 ( 1996).                 The exception to this rule occurs where the


shareholder' s claim arises         from " something       other   than his   shareholder status."     Sound Infiniti, Inc.


v.   Snyder, 145 Wn.        App.    333, 352, 186 P. 3d 1107 ( 2008) (          emphasis omitted),
                                                                                                        aff'd, 169 Wn.2d

199, 237 P. 3d 241 ( 2010). Thus, Division One of this court recognizes two exceptions to the usual


rule against shareholder          standing: "(    1) where there is a special duty, such as a contractual duty,

between the wrongdoer and the shareholder; and ( 2) where the shareholder suffered an injury

separate and    distinct from that       suffered   by   other shareholders."       Sabey v.   Howard Johnson & Co.,


101 Wn.     App.    575, 584 -85, 5 P. 3d 730 ( 2000).         Similarly, Division One has held that " a guarantor

must show a     distinct    and    different   injury before   an   independent    action can    be   maintained."   Miller


v.   U.S. Bank of Wash., N.A., 72 Wn.               App.    416, 423, 865 P. 2d 536 ( 1994) (           citing Sparling v.

Hoffman Constr. Co., 864 F.2d 635, 640 ( 9th Cir. 1988)).


           The causes of action in this case arose out of WVII' s relationships with regulatory agencies

and potential business partners. Piper herself was not a party to any of these relationships, and the

fact that she negotiated or executed contracts on behalf of WVII does not make her a party. Hunter

                                                               17
No. 44404 -6 -II



v.   Knight, Vale &        Gregory,      18 Wn.   App. 640,   644 -45, 571 P. 2d 212 ( 1977), review denied, 89


Wn.2d 1021 ( 1978).           Rather, WVII acquired the property and applied for the permits. CP at 1392

     Q. And for all the important things that happened in this development, it was Woods View II

that   was   the   owner; correct?       A. Yes. ").


          WVII argues that Piper suffered a separate and distinct injury because the failure of the

Woods View project resulted in a nonjudicial foreclosure that extinguished WVII' s liability but

preserved the right to pursue a deficiency judgment against Piper as guarantor. WVII further points

to debts that Piper personally guaranteed in Norpac Construction, LLC' s favor, which also went

into default because the Woods View project failed. Finally, WVII points to various creditors who

filed suit against Norpac and Piper, but not WVII.


          But these facts are properly analyzed as consequential damages that would not have

happened but for the primary harm to WVII.                    A shareholder does not have standing to recover

consequential       damages that       result   from the harm to her     corporation.   Stonehill, 83 F. 3d at 1160.


The fact that Piper          was   the   sole   shareholder   of   WVII does   not   change     our analysis:   a sole



shareholder,
                   by     necessity,   cannot    show "   an injury distinct from that to other shareholders."

Sparling, 864 F. 2d at 641.

          Piper has       not established an exception        to the   shareholder   standing   rule.   Therefore, she

                     18
lacks standing.




18
     Accordingly, we do not reach the issue of whether Piper was collaterally estopped from litigating
the issue of standing.

                                                              18
No. 44404 -6 -II



                                                                IV. LUPA


          On cross appeal, the County argues that its permitting actions can be challenged only

through a LUPA appeal and that WVII' s failure to bring an action under LUPA bars any damages

actions   arising from its permitting activity. 19                  WVII argues that LUPA does not bar its action

because it is seeking monetary compensation rather than a modification of a land use decision, and

its action is not a superior court review of an administrative decision. We agree with WVII. LUPA


does not bar this action.


          LUPA is normally the               exclusive     remedy for land       use   decisions. RCW 36. 70C. 030( 1).     But


LUPA does          not   apply to "[       c] laims provided by any law for monetary damages or compensation."

RCW 36. 70C. 030( 1)(           c).     This is   not a strict    bar —as this court has recognized, a damage claim


may   still   be   controlled         by   LUPA if it is dependent          on "   an interpretive decision regarding the

application    of a      zoning       ordinance."    Asche v. Bloomquist, 132 Wn. App. 784, 801, 133 P. 3d 475

 2006),   review     denied, 159 Wn.2d 1005 ( 2007). Further, even if an applicant obtains the requested


permit approval, he still must file a LUPA appeal if he intends to challenge the propriety of any

conditions placed on issuance of the permit. James v Kitsap County, 154 Wn.2d 574, 590, 115

P. 3d 286 ( 2005).

          This     case   is   not    like Asche    nor   James, however.         WVII is not challenging the actual land

use decisions below because it received all of the permits it asked for nor is it challenging any

conditions     imposed.         Instead, this       case   is   analogous   to   Lakey    v.   Puget Sound   Energy,   Inc., 176




19 The County' s brief indicates that it' s cross notice of appeal is intended only to preserve
arguments from its first summary judgment motion and that the County seeks no relief other than
the affirmance of the summary judgment below.

                                                                    19
No. 44404 -641



Wn.2d 909, 296 P. 3d 860 ( 2013).            There, the Supreme Court ruled that the appellants were not


required to file a LUPA petition to pursue their claims for damages where the appellants were only

seeking money compensation rather than a reversal or modification of a land use decision. Further,

the Supreme Court held that because LUPA provides for judicial review of a local jurisdiction' s


land use decision and the appellants were making a claim that they could not raise before the

hearing examiner, appellants were not invoking the superior court' s appellate jurisdiction and

LUPA did not govern their claim. Lakey, 176 Wn.2d at 927 -28.

         Similarly, all WVII seeks is damages for the delay in rendering those decisions. In such a

case,   LUPA is     not a   bar to the   plaintiff' s claims.   Libera v. City ofPort Angeles, 178 Wn. App.

669, 675   n. 6,   316 P. 3d 1064 ( 2013).      LUPA does not bar WVII' s claims here and we reject the


County' s LUPA cross appeal.

                                         V. NEGLIGENCE / PUBLIC DUTY DOCTRINE


         WVII argues that the County' s delay in processing its SDAP and issuing the MDNS fell

short of the standard of care for municipalities in the course of their permitting responsibilities.

We agree with the County' s public duty doctrine arguments and affirm the summary judgment as

to WVII' s negligence claim.


         Every negligence action requires a showing of "a duty of care running from the defendant

to the   plaintiff."   Honcoop      v.   State, 111 Wn.2d 182, 188, 759 P. 2d 1188 ( 1988).      Where the


defendant is a government entity,

         the public duty doctrine provides that a plaintiff must show the duty breached was
         owed to him or her in particular, and was not the breach of an obligation owed to
         the public in general, i.e., a duty owed to all is a duty owed to none.




                                                           20
No. 44404 -6 -II



Munich     v.     Skagit   Emergency        Commc'        n   Ctr., 175 Wn.2d 871, 878, 288 P. 3d 328 ( 2012) ( citing


Babcock      v.   Mason     County     Fire Dist. No. 6, 144 Wn.2d 774, 785, 30 P. 3d 1261 ( 2001); Beal v.


City ofSeattle, 134 Wn.2d 769, 784, 954 P. 2d 237 ( 1998)).

          There     are    four   exceptions      to the      public    duty doctrine: (      1) legislative intent, (2) failure to


enforce, (   3) the rescue doctrine, and ( 4) a special relationship. Munich, 175 Wn.2d at 879 ( citing

Cummins      v.    Lewis   County,    156 Wn.2d 844, 853, 133 P. 3d 458 ( 2006)).                    If any one ofthe exceptions

applies, then the government owes the plaintiff a duty as a matter of law. Munich, 175 Wn.2d at

879. Here, WVII argues only the failure to enforce and special relationship exceptions are at issue,

but we conclude neither exception applies.


                                                    A. FAILURE TO ENFORCE


          The failure       to    enforce exception applies when "[(                 1)]   governmental agents responsible for


enforcing statutory          requirements [(        2)]    possess actual knowledge of a statutory violation, fail to

take   corrective action          despite   a   statutory     duty to   do   so, and [(    3)] the plaintiff is within the class the


statute   intended to       protect."       Bailey v. Town of Forks, 108 Wn.2d 262, 268, 737 P. 2d 1257, 735

P. 2d 523 ( 1987).          This exception is narrowly construed, so as to respect the policy of Taylor v.

Stevens   County,      111 Wn.2d 159, 165, 759 P. 2d 447 ( 1988). Atherton Condo. Apartment -Owners


Ass 'n Bd. ofDirs.         v.   Blume Dev. Co., 115 Wn.2d 506, 531, 799 P. 2d 250 ( 1990).


          In Taylor, our Supreme Court held that " building codes impose duties that are owed to the

public at    large."       111 Wn.2d        at   165.     That is, "    building codes are designed to protect the public

safety, health and welfare, not to protect individuals from economic loss caused by public officials

while   carrying      on public      duties."      Taylor, 111 Wn.2d            at   169 ( emphasis    added).   Taylor purposely

drew the scope of the public duty narrowly in order to avoid " dissuad[ ing] public officials from


                                                                        21
No. 44404 -6 -II



carrying     out   their   public   duty." 111 Wn.2d at 171. These same policy principles require this court

to construe the failure to enforce exception narrowly as well.

          WVII admits that no reported case has applied the failure to enforce exception in a case


like this.    Indeed, WVII raises the unusual theory that the statutory requirement that the County

failed to enforce was its own mandate to issue a timely permit. We found no Washington case that

has applied the failure -to- enforce exception where the defendant government entity fails to take

corrective action against itself Rather, the failure to enforce exception envisions a situation in

which a regulator          knowingly     approves "    inherently dangerous        and   hazardous   conditions,"   Pepper


v.   J.J. Welcome Constr. Co.,           73 Wn. App. 523, 533 -34, 871 P.2d 601, abrogated by Phillips v.

King County,        87 Wn.     App.    468, 943 P. 2d 306 ( 1997),       review    denied, 124 Wn.2d 1029 ( 1994),         or




where a police officer fails to take an intoxicated driver into custody, Bailey, 108 Wn.2d at 264.

          Also missing is any " mandatory duty to take specific action" to correct a violation. Forest

v.   State, 62 Wn.         App.   363, 369, 814 P. 2d 1181 ( 1991).          While former KCC 21. 04. 110( A) does


state   that decisions "          shall be issued not more than seventy -eight days after the date of the

determination        of completeness" (         emphasis added), the ordinance does not tell the County what to

do if it does      not,    in fact, issue   a   decision   by   that time.   The   reason   for this is   obvious —it   is the


judiciary, not the County, which is responsible for correcting the County 's failure to abide by its

own     time limits.       That is, any duty to correct the County' s behavior is not vested in the County.

Drawing the failure -to- enforce exception narrowly, as Taylor requires us to do, we hold that WVII

has failed to show that the exception should apply.




                                                                  22
No. 44404 -6 -II



                                                 B. SPECIAL RELATIONSHIP


            The   special   relationship      exception applies          when "(   1)   there is direct contact or privity

between the public official and the injured plaintiff which sets the latter apart from the general


public, and ( 2) there are express assurances given by a public official, which ( 3) gives rise to

justifiable     reliance on   the   part of   the   plaintiff."   Taylor, 111 Wn.2d at 166.


            The first   element,      privity, is defined         broadly —it refers to the relationship between a

government agency and any reasonably foreseeable plaintiff. Chambers -Castanes v. King County,

100. Wn.2d 275, 286, 669 P. 2d 451 ( 1983).                  Drawing all factual inferences in WVII' s favor, we

hold that WVII was a reasonably foreseeable plaintiff.

            The second element requires that " a direct inquiry is made by an individual and incorrect

information is clearly set forth by the government, the government intends that it be relied upon

and   it is   relied upon   by   the individual to his detriment."              Meaney v. Dodd, 111 Wn.2d 174, 180,

759 P. 2d 455 ( 1988).        An assurance is express only if it promises that a government official "would

act   in   a specific manner."        Babcock, 144 Wn.2d           at   791.   Furthermore, any express assurance must

be unequivocal. Meaney, 111 Wn.2d at 180.

            The third   elementjustifiable reliance —               is a " question of fact generally not amenable to

summary judgment." Babcock, 144 Wn.2d at 792.


            WVII points to the County' s statement that " it would process the application as a vested

permit request, meaning that [ WVII] should receive the permit under the land use requirements in

place at      that time."   CP   at   602 -03.   This may be an assurance that WVII would receive the SDAP

permit, which        it did. But it was not an assurance that WVII would receive the permit within a


specific timeframe. Perhaps WVII had a reasonable expectancy that the SDAP permit would issue


                                                                  23
No. 44404 -6 -II


within    the 78 -day time    limit   established   by   former KCC 21. 04. 110( A).   If so, that expectancy was

an implied assurance not an express one. WVII fails to point out what " incorrect information [was]


clearly   set   forth"   by the County. Meaney,          111 Wn.2d   at   180. For that reason WVII' s claim that


the special relationship exception applies fails.

                                                    C. CONCLUSION


          Because neither of the asserted exceptions to the public duty doctrine (failure to enforce or

special relationship) applies, the public duty doctrine bars negligence liability as a matter of law.

WVII. fails to establish that the County' s duty to timely issue SDAPs was owed to WVII in

particular rather than the public in general. As such, WVII' s negligence claim fails at the outset,


and summary judgment on the negligence claim was proper. As to WVII' s negligence claim, we

affirm the superior court' s summary dismissal.

                                            VI. TORTIOUS INTERFERENCE


          WVII argues that the County interfered with its business expectancies and contracts when

it suspended the processing of WVII' s SDAP application, caused KCSD to withdraw from its

contract to manage the LOSS for WVII, communicated with DOH regarding WVII' s pending

LOSS permit, and delayed the approval process for the project. We disagree.

          Tortious       interference has five       elements: (     1)   Business   relationship /expectancy, (   2)


defendant'      s   knowledge   of    relationship, ( 3)   intentional interference resulting in termination of

relationship, (4) improper purpose /means, and ( 5) damages. Pac. Nw. Shooting Park Ass 'n v. City

of Sequim, 158 Wn.2d 342, 351, 144 P. 3d 276 ( 2006).                     These elements are described in detail


below.




                                                             24
No. 44404 -6 -II



         We conclude WVII fails to show that the County' s interference resulted in the termination

of   WVII'   s   relationship    with either   KCSD           or   Legacy   under   prong ( 3).   We further conclude that


WVII is unable to show any genuine dispute as to a material fact regarding prong (4), whether the

County acted with improper means or improper purpose regarding its business expectancy in the

project. Accordingly, we decline to reach the issue of damages or proximate cause, and we affirm

the superior court' s order granting summary judgment on this claim.

                                    A. ELEMENTS OF TORTIOUS INTERFERENCE


1.   BUSINESS RELATIONSHIP OR EXPECTANCY


         A developer has a protected business expectancy in its projects, which can give rise to a

tortious interference      claim.     Westmark Dev. Corp. v. City of Burien, 140 Wn. App. 540, 557 -58,

166 P. 3d 813 ( 2007),      review     denied, 163 Wn.2d 1055 .(2008).                   WVII' s expectancy in its Woods

View    project satisfies       the first   element.      Furthermore, WVII had business relationships with its


prospective LOSS manager, KCSD, and its prospective lender, Legacy. Both KCSD and Legacy

made an initial commitment to work with WVII. Drawing all factual inferences in favor of WVII,

the nonmoving party, we hold that the first element of tortious interference is satisfied.

2. KNOWLEDGE OF RELATIONSHIP


         The knowledge element is satisfied when the defendant knows of "facts giving rise to the

existence of       the relationship."       Calbom       v.    Knudtzon, 65 Wn.2d 157, 165, 396 P. 2d 148 ( 1964).

This element does not require specific knowledge, only awareness of " some kind of business

arrangement."         Topline    Equip.,    Inc.   v.   Stan    Witty    Land, Inc.,   31 Wn. App. 86, 93, 639 P. 2d 825,

review   denied, 97 Wn.2d 1015 ( 1982).                 Here, the County was certainly aware of WVII' s business

plans    for the Woods View development.                           The County was also aware of WVII' s business


                                                                    25
No. 44404 -6 -II



relationships with KCSD and Legacythat is the reason the County communicated with KCSD

and Legacy. Drawing all factual inferences in WVII' s favor, the second element is satisfied.

3.   INTENTIONAL INTERFERENCE RESULTING IN TERMINATION OF RELATIONSHIP


           a. KCSD


           WVII alleges that the County interfered with WVII' s business relationships with both

KCSD and Legacy, as well as WVII' s business expectancy in the Woods View project in general.

It is true that the County communicated with both KCSD and Legacy, and it is true that both KCSD

and   Legacy     terminated their         business      relationships        with      WVII.     The question is whether the


County' s    communications caused                 those business      relationships         to end.   Even drawing all factual

inferences in WVII' s favor, a reasonable finder of fact could not find that the County caused the

termination of WVII' s relationships with KCSD and Legacy.

           The County contacted KCSD in June 2007 to voice its concerns over the legality of the

Woods View project. By that time, WVII had already decided of its own volition to abandon its

relationship with KCSD and " move forward with using a DOH approved private management

entity."    CP   at   135;   see also   CP    at   139 ( "[ M]y   client has not concluded a maintenance agreement

with [ KCSD]          and at   this   point   does   not   intend to do      so. ").    Accordingly, whether or not KCSD

acted on the basis of the County' s legal arguments, it was not KCSD that ended the relationship

with WVII but rather WVII itself. There is no genuine issue of material fact as to whether the


County tortiously interfered with WVII' s relationship with KCSD.

           b. LEGACY


           WVII'      s arguments with respect          to   Legacy    are   similarly unavailing.         It is true that Legacy

declined to fund WVII'            s loan      after a conference call with             the   County. However, according to


                                                                  26
No. 44404 -6 -II



Legacy' s vice president, Brent Eley, the County did not express any opinion about whether the

Woods View project or the associated permits would be approved and that Legacy " did not feel as

though the County actors tried to discourage our consideration of loaning to Woods View II LLC

and   did   not ...   try[] to inject itself into [ Legacy' s] business relationship with Woods View II LLC

or   Ms. Piper."       CP   at   124 -25.    Eley' s testimony unambiguously shows that the County did not

cause Legacy to decline to fund WVII' s loan. WVII fails to present any evidence that would lead

a reasonable finder of fact to disbelieve Eley' s account. Accordingly, we hold that WVII has failed

to show specific facts that would create a genuine issue of fact regarding the County' s alleged

tortious interference with WVII' s relationship with Legacy. CR 56( e).

            C. WOODS VIEW BUSINESS EXPECTANCY


            WVII argues that the County' s own delay, as well as delay that the County caused DOH to

incur,   caused       the Woods      View     project   to fail.    Even assuming without deciding that WVII

establishes intentional interference resulting in termination of relationship, WVII fails to establish

a genuine      dispute   as   to prong ( 4) improper       purpose /means.    Accordingly, we need not analyze

further whether the County' s interference resulted in termination of the project.

4. IMPROPER PURPOSE OR MEANS


            The fourth element may be satisfied by proving either that the defendant had an improper

purpose or      that the defendant          used   improper   means.   The terms   are not synonymous:   this court


has recognized that


            in government delay cases, proving improper purpose requires showing that the
            defendant delayed plaintiff with the purpose of improperly preventing plaintiff' s
            land development, and proving improper means requires showing that the
            defendant arbitrarily singled out for delay a particular plaintiff or type of plaintiff.



                                                               27
No. 44404 -6 -II



Libera, 178 Wn. App. at 677 ( citing Pleas v. City of Seattle, 112 Wn.2d 794, 804 -06, 774 P. 2d

1158 ( 1989);      Westmark, 140 Wn.          App.   at   560 -61).   Accordingly, to prove that the County

interfered to further an improper purpose or by virtue of an improper means, WVII must

demonstrate not only that the County did interfere but that it had a duty not to interfere. Libera,

178 Wn. App. at 676. We conclude that WVII fails to raise a genuine issue of material fact as to

improper purpose and improper means.


        a. IMPROPER MEANS


                   WVII' s argument with regard to improper means is threefold. Attempting to draw

analogies    to Westmark,          WVII takes issue with ( 1) the additional delay caused by the County' s

suspension of the application process while it waited for the state to respond to one of its inquiries,


 2) the County' s interference with KCSD, which caused KCSD to terminate its relationship with

WVII, and ( 3) the delay caused by the County' s correspondence with DOH, including its repeated

representations that the development did not comply with the GMA and the County' s

comprehensive plan.




        In the permitting context, one example of an improper means is imposing an extraordinary

delay. Westmark, 140 Wn. App. at 560. WVII relies heavily on Westmark, an instructive decision,

but   one   that is   nevertheless     distinguishable from the facts here.          In Westmark, a plaintiff in


unincorporated King County applied to King County fora permit to build an apartment complex.

140 Wn.     App.   at   543 -44.    While the application was pending and when King County was nearly

ready to make a decision on the developer' s permit, the city of Burien incorporated the area and

assumed     permitting responsibility.         Westmark, 140 Wn.        App.   at   544.   The city then delayed




                                                            28
No. 44404 -6 -II



approving the developer' s permit for a period of years when the typical response time was 30 to

120 days.      Westmark, 140 Wn. App. at 561.

          The evidence revealed that Burien had incorporated in part to stop the development of

apartment buildings and that the specific development at issue was one of only a few proposed

projects that Burien took over when there were as many as 100 others pending in the area.

Westmark, 140 Wn. App. at 559. The Westmark court found that Burien had employed improper

means    to   delay      the permitting   process.     140 Wn. App. at 560.

          Specifically, the city' s SEPA decision took more than 3 years when ordinarily it should

take between 30           and   120 days. Westmark, 140 Wn. App.            at   561.    City employees made decisions

that   resulted     in   additional   delay   without ever     having   reviewed   the   project' s   files. Westmark, 140


Wn.    App.    at   559.      And despite the fact that the developer immediately provided any requested

information, Burien             would not provide straight answers.         Westmark, 140 Wn. App. at 560 -61.

          Here, the County took 19 months to issue a SDAP when, by ordinance, the decision should

take   no more       than 78 days.        Former KCC 21. 04. 110( A). But the delays here, unlike those in


Westmark,       were not caused         by   the   County'   s use of "improper" means.        The record demonstrates


that the County did temporarily suspend the application process, but the County did so only

because it anticipated guidance from the state and then Governor Gregoire regarding what the

County felt was an untenable position.

          The County wrote a letter to the governor in which it recognized the conflict that arose

where ( as here) a sewer system designed for urban use was nevertheless permitted to serve a rural


area    by    virtue     of   the   fact that those    areas   involved " pre -GMA         vested     lot[ s]."   CP at 901.


Understandably, the County was hesitant to proceed with the WVII permitting process because it


                                                                29
No. 44404 -6 -II



believed doing so made it susceptible to liability for violating the GMA. Even though the vested

rights doctrine rendered the County powerless to deny WVII building permits, it became aware

that extending urban services outside urban growth areas was contrary to current GMA goals and

policies. WVII fails to show how the delay caused by the County' s reasonable appeal to the State

for guidance constitutes " improper means" for the purpose of a tortious interference claim.

        Moreover, WVII' s allegation that the County improperly injected itself into dealings

between KCSD and WVII, causing the relationship to deteriorate, is unpersuasive. WVII is correct

that the County expressed its displeasure with the notion that KCSD would serve as the owner or

operator of the LOSS for WVII. But again, the County did so because it was of the opinion that

the controlling statutes and regulations did not permit an entity like KCSD to manage the LOSS.

The County also stated unequivocally that despite its position, it could not prevent KCSD from

reaching   an agreement with   WVII   should   it decide to.    Furthermore, by the time the County

expressed its sentiment to KCSD, WVII had already indicated that it had decided to use a " DOH

approved private management     entity" instead.    CP   at   135.   WVII again fails to show that the


County interfered using " improper means."

        Finally, WVII alleges that the County interfered with the development in part by " falsely ".

telling DOH   that the development did   not   comply   with applicable   land   use   designations. But in


context, the County simply relayed its concern that the project appeared inconsistent with the GMA

and in potential violation of the State' s duty to ensure that approved projects are consistent with

local planning mandates. And again, the County expressly reminded DOH that the County had no

authority to deny the project. Furthermore, the County' s position that the LOSS did not comply

with the GMA was accurate. The GMA endeavors to prohibit the extension of urban services to



                                                   30
No. 44404 -6 -II



rural areas.   RCW 36. 70A. 110( 4).         We conclude that even reviewing the evidence in WVII' s favor,

the delays     here do   not rise   to the level    of " extraordinary"      delay by use of improper means as

contemplated by Westmark.

         Another example of an improper means is singling out a project by imposing additional

requirements not contained          in the   applicable statute.   Pleas, 112 Wn. 2d       at   796 -97. But here, the


County did     not and could not      impose the     single   ownership      condition.   That decision rested with


the DOH.       WAC 246 -272B- 02150.             WVII also failed to show that the County singled out its

proposed development in the permitting process as compared to other similarly situated projects.

Unlike the facts in Westmark, WVII does not attempt to show that the County' s alleged

interference with DOH was limited to its development efforts or even to its type of development.


In other words, the County could consistently issue the development permits and argue to DOH

that an on -site sewer system serving a high density site in a rural area should not be approved by

DOH because it is inconsistent with the County' s current comprehensive plan and the GMA' s

provisions regarding development outside an urban growth area. This is a rational position for the

County to take. The County argues that its statements cannot constitute improper means because

the   County   was "   merely asserting      an arguable    interpretation   of   existing law."   Leingang v. Pierce

County   Med. Bureau, Inc., 131 Wn.2d 133, 157, 930 P. 2d 288 ( 1997).                    We agree with the County

that WVII fails to show a material issue of fact as to whether the County arbitrarily singled out for

delay WVII' s development.

         b. IMPROPER PURPOSE


         While improper      purpose and       improper     means are separate       inquiries, " impropriety   may be

more   easily found if the    means of       interference   was wrongful."        Pleas, 112 Wn.2d at 806. Where



                                                             31
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a municipality singles out a project, it is an improper purpose to do so for the purpose of political

advantage, such as         placating      a state representative or a       community group.    Westmark, 140 Wn.


App. at 560; Pleas, 112 Wn.2d at 796.

            In Pleas, our Supreme Court identified an improper purpose for the sake of a tortious


interference claim where the city of Seattle actively obstructed an apartment complex project

specifically to gain the favor of politically active and influential organizations. Pleas, 112 Wn.2d

at   805.    The city consistently delayed processing the application to correspond with a group of

concerned citizens, defied court orders to continue to process the project' s application, encouraged


the citizen' s group to petition for a favorable rezone to block the project, and otherwise bypassed

ordinary procedures to appease its constituents. Pleas, 112 Wn.2d at 796 -800. And in Westmark,

Burien obstructed the apartment building in part to please a state representative who lived near the

proposed site and        actively   opposed    the development.        140 Wn. App at 560.

            Here, although there was considerable community opposition to the WVII development,

this fact alone does not indicate that the County intentionally caused delay for the sole purpose of

placating its      constituents.     Commissioner Bauer did tell a constituent that the " County staff and

elected officials believe that they have actively worked to find ways within the law to deny this

project."     CP   at   436.   But this statement was only a small portion of an otherwise lengthy e -mail

sent to a concerned citizen to explain why the County could not prevent the project from going

forward, and simultaneously to express agreement that the project was. not " good for the area or

consistent with current         land     use standards."   CP   at   436.   Importantly, the commissioner said that

his understanding was that the County had worked to find ways within the law to deny the project.

While improper          purpose     is   not synonymous    with "     illegal"   purpose, it follows logically that a


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County' s pursuit of legally available avenues to address its concerns would necessarily not

constitute "   improper   purposes."    Unlike Pleas, the County here did not use improper means to

single out the Woods View project, and WVII fails to show that the County had an improper

purpose in communicating with DOH. We conclude that there is no genuine issue of material fact

as to improper purpose.


        In summation, to avoid summary judgment, WVII must show that a genuine dispute exists

or that they have established all five elements of tortious interference. Here, WVII fails to establish

a genuine   issue   of material    fact as to the improper        purpose or       improper   means element.         Thus,


summary judgment is properly granted as to WVII' s intentional tortious interference claim.

Consequently, we decline to examine the issues of damages or causation.20

                                                   VII. TAKINGS


        WVII     makes    three   arguments   to   support    its takings     claim.   It argues ( 1) that a permanent


and substantial reduction     in property     value   is   sufficient   to   state a successful   takings   claim, ( 2)   the


County compelled DOH to require WVII to burden its property with a covenant prohibiting the

transfer of individual lots in the development, and ( 3) the County engaged in "a set of guerilla [sic]

tactics unreasonably intended to hold up            and prevent construction of a project,"            thus effecting a




20 The County argues that the tortious interference claim is collaterally estopped by the federal
court' s decision in this case. Because the tortious interference claim fails on its merits, we do not
address the County' s collateral estoppel argument.

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          21
taking.        Reply Br. of Appellant at 29. We affirm summary judgment as to takings because WVII

cannot show that the County' s actions resulted in a taking.

          Washington State Constitution            article   I,   section   16   states   that "[ n] o private property shall



be taken or damaged for public or private use without just compensation having been first made."

Under existing Washington and federal law, a police power measure can violate article I, section

16 of the Washington State Constitution or the Fifth Amendment of the United States Constitution


and   thus be     subject   to    a   takings   challenge when (       1)   a regulation affects a total taking of all

economically viable use of one' s property, Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 1019, 112 S. Ct. 2886, 120 L. Ed. 2d             798 ( 1992); ( 2)         the regulation has resulted in an actual


physical invasion upon one' s property, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

419, 433, 102 S. Ct. 3164, 73 L. Ed. 2d 868 ( 1982); ( 3) a regulation destroys one or more of the


fundamental attributes of ownership ( the right to possess, exclude other, and to dispose of

property),     Presbytery ofSeattle v. King County, 114 Wn.2d 320, 330, 787 P. 2d 907, cert. denied,

498 U.S. 911 ( 1990);        or (4) the regulations were employed to enhance the value of publicly -held

property, Orion      Corp.   v.   State, 109 Wn.2d 621, 651, 747 P. 2d 1062 ( 1987), cert. denied, 486 U. S.




21 In its opening brief, WVII argues only that the superior court should not have dismissed the
takings claim because the County did not specifically request summary judgment on that claim.
We reject WVII' s argument that the County did not request summary judgment on the takings
issue because it did so in a supplemental brief


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         1022 ( 1988);     Manufactured Housing Cmtys. of Wash. v. State, 142 Wn2d 347, 355 -56, 13

P. 3d 183 ( 2000). 22


         Under these controlling legal principles, WVII fails to show that a taking occurred.

               A. A PERMANENT AND SUBSTANTIAL REDUCTION IN PROPERTY VALUE


         Relying on Borden v. City ofOlympia, 113 Wn. App. 359, 374, 53 P. 3d 1020 ( 2002), review

denied, 149 Wn.2d 1021 ( 2003), WVII claims that a permanent and substantial reduction in


property value is sufficient to state a takings claim. But in Borden, the court found that no taking

had occurred based on a flooding incident, and WVII does not explain how Borden supports its

position in any respect. WVII also relies on Lambier v. City ofKennewick, 56 Wn. App. 275, 279,

783 P. 2d 596 ( 1989), review denied, 114 Wn.2d 1016 ( 1990).


         In Lambier, due to the city' s design and construction of a road, up to 12 vehicles ended up

crashing in the Lambiers' yard over time, causing the resale value of their home to plummet to

nearly half its   value.    56 Wn.    App   at   277.   The court noted that the city affirmatively undertook

the   construction project    that   resulted    in the Lambiers' damages.      Lambier, 56 Wn. App. at 280.

WVII argues summarily that a taking is established so long as it can show a " subsequent decline

in   market value"   resulting from the      regulation.     Lambier, 56 Wn. App. at 279 ( citing Martin v.

Port of Seattle, 64 Wn.2d 309, 320, 391 P. 2d 540 ( 1964),           cent.   denied, 379 U.S. 989 ( 1965)).   But


we note that both Borden and Lambier are distinguishable because the plaintiffs there alleged a ( 1)




22 Regulations have also been found unconstitutional because they violate substantive due process
whether or not a     total taking        invasion has actually occurred. See Guimont v. Clarke,
                                     or physical

121 Wn.2d 586, 608, 854 P. 2d 1 ( 1993), cert. denied, 510 U. S. 1176 ( 1994); Margola Assocs. v.
City   of Seattle, 121 Wn. 2d 625, 649, 854 P. 2d 23 ( 1993).         WVII does not assert a substantive due
process claim.



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government' s ( 2) physical invasion that ( 3) resulted in damages. And here, WVII does not allege


a government' s physical   invasion   onto   WVII land that   caused   damages.     Again WVII fails to


explain how Borden or Lambier support its takings claim here.


        Perhaps more to the point, neither Lucas nor Guimont v. Clarke, 121 Wn.2d 586, 854 P. 2d


1 ( 1993), cert. denied, 510 U.S. 1176 ( 1994), upon which WVII relies, suggest that a reduction in


property value alone constitutes some sort of per se taking. As just noted, Lucas held that a taking .

occurs when a regulation eliminates all      economically   viable use of one' s   property.   505 U.S. at


1019.   Our Supreme Court incorporated this rule into its threshold test in determining whether a

regulation has worked a taking. Guimont, 121 Wn.2d at 600. We recognize that this appeal does

not challenge a regulation as did the appeals in Lucas and Guimont. Nonetheless, WVII' s apparent


position that any substantial loss of property value alone is a taking is at odds with the rationales

underlying both these decisions. If the loss of some economically viable use is not per se a taking,

then neither is the loss of some property value.

                     B. FUNDAMENTAL ATTRIBUTE OF PROPERTY OWNERSHIP


        Citing Manufactured Housing, WVII next argues that a property owner has the unrestricted

right to dispose of it and anything that destroys that right without compensation constitutes a

taking. WVII claims that the County compelled DOH to require WVII to burden its property with

a covenant prohibiting the transfer of individual lots and these actions by the County constitute a

taking. This argument fails.




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        The central flaw in WVII' s position is that the County had no legal authority to compel the

DOH to     require   anything     of   WVII. That authority          rested with    DOH   alone.       The County simply

asserted a reasonable, legal position to DOH, and the DOH made its own decision in response.


The County did not interfere with WVII' s property ownership rights in any manner.

                                                  C. TAKING BY DELAY


        Finally, WVII argues that the County engaged in "a set of guerilla [sic] tactics unreasonably

intended to hold up        and prevent construction of a project,"           thus effecting       a   taking. Reply Br. of

Appellant    at   29.     WVII cites to no authority, and we have found none, for the position that

government        delay   can   constitute    a   taking. "'   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. "'   Nguyen v. City of Seattle, 179 Wn. App. 155, 171, 317 P. 3d

518 ( 2014) ( internal      quotation marks omitted) (          quoting State v. Logan, 102 Wn. App. 907, 911

n. 1, 10 P. 3d 504 ( 2000)).


        Accordingly,        the   County' s   actions    do    not   constitute a   taking   as   a matter of   law.   The


superior court did not err in granting summary judgment on WVII' s takings claim and we affirm.23




23
  Accordingly, we do not reach the issue of whether the takings claim was collaterally estopped
by the federal court' s decision.

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No. 44404 -6 -II


                                          CONCLUSION


        We reject the County' s LUPA and statute of limitations arguments. Regarding the superior

court' s grant of summary judgment on the issues of standing, negligence, takings, and tortious

interference, we affirm.24

        A majority of the panel having determined that this opinion will not be printed 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:




24 The County argues that it cannot be held liable for its communications to DOH under the Noerr-
Pennington doctrine.   E. R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127, 81 S. Ct.
523, 5 L. Ed. 2d 464 ( 1961).   That doctrine immunizes petitions to government from certain types
of liability. Because we hold that WVII' s claims against the County fail, we need not address the
County' s immunity under this doctrine.
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