      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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LAKE FOREST PARK WATER                   )
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DISTRICT, a municipal corporation,       )      No. 73309-5-1
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                    Appellant,           )      DIVISION ONE                    en
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                                         )      UNPUBLISHED OPINION             **
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CITY OF LAKE FOREST PARK,                )                                      CO    3C-<

a municipal corporation,                 )
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                    Respondent.          )      FILED: April 25,2016
                                         )

      Leach, J. — When a city vacates a right-of-way, title transfers to the

abutting property owners. Here, the City of Lake Forest Park (City) passed an

ordinance that purported to vacate the right-of-way for yet unopened streets and

retain title for the City. The parties agree the portion of the ordinance retaining

title is void. The ordinance's severability clause does not preserve the vacation

provision because retention of title was an integral part of the entire ordinance.

Its underlying purpose and legislative history show that the City would not have

passed the ordinance had the City not retained title. The trial court properly

granted summary judgment.

                                      FACTS


      Lake Forest Park Ordinance 398 vacated portions of several never

opened streets within the 1912 era Lake Forest Park Plat. The ordinance also
NO. 73309-5-1 / 2




purported to retain the City's title to the vacated right-of-way contrary to RCW

35.79.040. This statute provides that the ownership of a vacated street belongs

to the abutting landowners up to the center line of the vacated street. Lake Forest

Park Water District (Water District) owns several parcels of land within the Lake

Forest Park Plat that abut the vacated property the City sought to retain.

       In 2014, the Water District filed this lawsuit to quiet title to the center line

of the vacated streets that abutted its property. The Water District based its

claim of title both on Ordinance 398 and its claims of adverse possession. The

Water District requested summary judgment declaring that when adopted,

Ordinance 398 vested in it fee title to the centerline of the vacated streets. The

City responded with a request for summary judgment declaring Ordinance 398

invalid from the date adopted.

       The trial court granted partial summary judgment to the City, finding

Ordinance 398 invalid in its entirety, but reserved for trial the Water District's

claims of adverse possession.       At the District's request, the trial court later

dismissed its remaining claims against the City, making the partial summary

judgment final. The Water District appeals.
NO. 73309-5-1 / 3




                                       ANALYSIS


       The parties agree that RCW 35.79.040 prevents the City from retaining

title to the right-of-way.1     They disagree about the validity of the ordinance

provision purporting to vacate the right-of-way. The Water District argues that

Ordinance 398's severability clause2 preserves as valid legislation the remaining

portion of the ordinance that vacates the right-of-way. The City contends that the

entire ordinance was void when adopted because the City would not have

adopted it if it could not retain title to the right-of-way.

       While a severability clause generally indicates that each portion of an

ordinance has independent validity, this is not true if the voided part of the

ordinance is so intertwined and interrelated to the valid portion that it cannot be

separated without also destroying the legislative intent.3            In this case, the

presumption created by the severability clause fails.          A court must construe an

ordinance in accord with its purpose.

       A court discerns the meaning of a statute "from all that the Legislature has

said in the statute and related statutes which disclose legislative intent about the



       1 RCW 35.79.040 provides, "If any street or alley in any city or town is
vacated by the city or town council, the property within the limits so vacated shall
belong to the abutting property owners, one half to each." (Emphasis added.)
       2 "If any part or portion of this Ordinance is declared invalid for any reason,
such declaration of invalidity shall not affect any remaining portions."
      3 6 Eugene McQuillin, The Laws of Municipal Corporations § 20:71, at
304 (3d ed. 2007).
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provision in question."4 Here, we ask if Ordinance 398 functions in a manner

consistent with the intent of the City Council of Lake Forest Park (City Council)

when passing it without the retention of title provision. In other words, would the

City Council have enacted the contested provision without the invalid one?5

Here, the City clearly would not have done so.

       The City Council adopted Ordinance 398 primarily to protect a watershed

area from development.      To do this, it determined that it needed to retain

ownership in the right-of-way. The City Council's minutes from April, May, and

July reflect this intent.

        In April 1988, the City Council expressed its desire "to retain the

undeveloped status of the canyon/watershed area." The April 20, 1988, City

Council minutes state,

       At the request of the Mayor, Mr. Evans will identify some
       appropriate steps to accomplish the desire of the Council to retain
       the undeveloped status of the canyon/watershed area.            Mr.
        Loschen asked what steps could be taken tonight to legally deny
        access through the City right-of-way to develop property. Mr.
        Evans suggested a motion to direct drafting a resolution to propose
        the vacation of the right-of-way. Mr. Loschen pointed out that with
        vacation of the riqht-of-wav. the property reverts to the property
        owners and the City would then have no control over the land and
        he wants to know, at this time, what needs to be done to establish
        intent.    Mr. Evans pointed out some legal concerns with
        establishing Open Space zoning of private land. Mr. Loschen

      4 Dep't of Ecology v. Campbell & Gwinn. LLC 146 Wn.2d 1, 11, 43 P.3d
4 (2002).
      5 See 6 McQuillin, § 20:71, at 302-03.
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      moved to propose a resolution that the Watershed/Canyon area be
      used for a natural park with the present easements retained. The
      motion died for lack of a second. Mr. Loschen stated that he wants
      to get something on the record and moved that a resolution be
      prepared proposing that the canyon right-of-way, N.E. 184th Street,
      be used exclusively for public recreation and the City Attorney be
      instructed to prepare alternative proposals for designation for that
      property.     Mr. Reed seconded the motion.       Mr. Baldwin spoke
      against this motion because it refers to using this property only for
      public recreation. The question was called for and the motion
      passed with six aye votes and one nay vote by Mr. Baldwin.

(Emphasis added.)

       In response to the Council and Mayor's directive, the city attorney

submitted a memorandum dated April 27, 1988, strongly recommending the City

consider vacating the right-of-way to accomplish its task:

          (1) The City has a legal right to vacate the roadway, regardless
      of opposition, and this would prevent the dedicated area from ever
       being used as access; [and]
          (2) Vacation is much safer, legally, and does not expose the
       City to risks of lawsuit for damages for the loss of use.

       In May 1988, the City Council again expressed its goal to prohibit

development in the area:

       The City Attorney has recommended vacation of the street right-of-
       way on N.E. 184th St. running through the watershed area, to
       accomplish the Council's goal of prohibiting development in that
       area.  Mr. MacGilvra was concerned that this vacation may
       "landlock" some parcels of property and create later problems. Mr.
       Evans said that landowners could then resort to a private right of
       condemnation to surrounding property owners for purposes of an
       easement for access. Mr. Loschen said he feels eager to get this
       land designated in some way and that property owners do not
       seem interested in acguiring this land through a vacation but do
       seem to favor preserving the creek area pretty much as it is now.
       Mr. Baldwin expressed his desire for the Council to consider all
NO. 73309-5-1 / 6



        alternatives to obtain our objective and he is concerned about
        access that might be obtained via easements that would have to be
        left in place after vacation. Mr. MacGilvra noted that as long as this
        right-of-wav is not vacated, property owners could develop it
        themselves for access to their property. Mr. Evans advised that the
        vacation statute does provide for the City to retain title of the
        vacated right-of-wav property. Responding to a question from Mr.
        Loschen, Mr. Evans advised that the property could be zoned as
        open space after vacation.        He also recommended having no
        unzoned property in the City. Water District No. 83 Superintendent
        Kenneth Chalmers asked for clarification of the parcel of land being
        discussed and said that because of restrictions now being placed
        on the water district regarding water quality, the watershed area is
        going to reguire more protection in the future. Mr. Reed moved and
        Mr. Ofstad seconded a motion that a resolution be prepared for the
        vacation of the undeveloped right-of-way along N.E. 184th St. with
        title retained by the City. The motion passed unanimously.

(Emphasis added.)

        Resolution No. 391 states,

        WHEREAS, the City Council has determined it is in the public
        interest to vacate that certain property . . . with title to be retained in
        the City: and WHEREAS, the Council does find that ownership,
        use, maintenance, and control of the said property, after vacation,
        should remain with the City. . . , the Council may consider an
        ordinance effecting the vacation proposed by this resolution
        provided that such ordinance shall specifically establish that title to
        the property vacated shall be retained in the City of Lake Forest
        Park.

(Emphasis added.)

        The City adopted Ordinance 398 "in conjunction with Resolution Number

391."    The recitals prefaced by the resolution's "whereas" clause show the

Council's collective intent that maintaining ownership was integral to their action.6

        e See N. State Constr. Co. v. Robbins, 76 Wn.2d 357, 365, 457 P.2d 187
(1969) (recitals are indicative "of the state of mind of the parties").
NO. 73309-5-1 / 7




The documents and the Council's minutes clearly establish that the City intended

with the ordinance to maintain title.    The Council would not have adopted the

ordinance without retaining title in the right-of-way.

       Citing State v. Anderson,7 the Water District argues that its ownership

would in fact accomplish the City's desire to preserve the area. This argument

necessarily fails because property owned by others abuts the contested right-of-

way. The record does not show that these owners have made any commitment

to preserve the watershed.

       The Water District's argument that its title to the right-of-way vested upon

the City's enactment of the ordinance also fails. This court applies the general

rules of statutory construction to ordinances.8          Under these rules, an invalid

statute is a nullity and "as inoperative as if it had never been passed."9 This

means the invalidity of a statute leaves the law "as it stood prior to the enactment

of the invalid statute."10 Because Ordinance 398 was invalid, title to the right-of-




       7 81 Wn.2d 234, 236, 501 P.2d 184 (1972).
       8 Ford Motor Co. v. City of Seattle. 160 Wn.2d 32, 41, 156 P.3d 185
(2007) ("Municipal ordinances, such as the ordinances at issue here, are local
statutes that are to be construed according to the rules of statutory
construction.").
       9 Boeing Co. v. State. 74 Wn.2d 82, 88-89, 442 P.2d 970 (1968) (citing
State ex rel. Evans v. Bhd. of Friends, 41 Wn.2d 133, 247 P.2d 787 (1952)).
       10 Boeing, 74 Wn.2d at 89 (citing 82 C.J.S. Statutes § 75, at 132 (1953);
16 Am. Jur. 2d Constitutional Law § 177, at 405 (1964)).
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NO. 73309-5-1 / 8




way stands as ifthe ordinance had never been adopted. Thus, no title passed to

the Water District.

                                      CONCLUSION


          We affirm the trial court's decision dismissing the Water District's quiet title

action.




                                                          /ju^^^.
WE CONCUR:




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