                                                                         FILED
                                                                     JANUARY 25, 2018
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

CITY OF UNION GAP, a municipal                )
corporation of the State of Washington,       )         No. 34740-1-III
                                              )
                     Appellant,               )
                                              )
       v.                                     )
                                              )         PUBLISHED OPINION
PRINTING PRESS PROPERTIES,                    )
L.L.C., a Limited Liability Corporation       )
registered and doing business in              )
Washington State,                             )
                                              )
                     Respondent.              )

       FEARING, C.J. — Plaintiff city of Union Gap and defendant Printing Press

Properties, LLC, (Printing Press) scrimmage as to whether Printing Press may cut a curb

and gain direct access to a major arterial from its land. The trial court granted Printing

Press summary judgment and denied Union Gap an injunction to prohibit the access.

Because Printing Press signed a development agreement granting Union Gap the

prerogative to deny direct access to the arterial, we reverse and grant judgment to Union

Gap.

                                          FACTS

       This lawsuit concerns Printing Press’ access to Valley Mall Boulevard, a new

arterial, whose centerline often serves as the boundary between the cities of Yakima and
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


Union Gap. Union Gap, the original Yakima City, lies to the south of Yakima. The

boulevard runs east-west and connects Interstate 82 and the Yakima Air Terminal,

Yakima’s principal airport. Union Gap designed, constructed, and maintains the

boulevard.

       Printing Press owns commercial property abutting Valley Mall Boulevard and

adjacent to the boulevard’s intersection with Longfibre Road. All of Printing Press’ land

now lies within the Yakima City limits and north of the boulevard. Railroad tracks run

north and south and lay directly east of Printing Press’ land. As part of the boulevard

improvement, Union Gap constructed a bridge over the tracks.

       Printing Press seeks to build direct access from its property to Valley Mall

Boulevard. It labels this access as a “driveway.” The city of Union Gap, citing safety

concerns, denied Printing Press’ application to create the driveway. Instead of appealing

Union Gap’s denial of access, Printing Press withdrew its application and submitted the

same proposal to the city of Yakima, which proposal Yakima approved. With this suit,

Union Gap seeks to permanently enjoin Printing Press from cutting the boulevard curb

such that a constructed driveway permits access on to the boulevard.

       Before construction of Valley Mall Boulevard, Longfibre Road provided ingress

and egress to Printing Press’ land via Washington Avenue, a major east-west arterial to

the north of the boulevard. Printing Press’ land abuts Longfibre Road. Longfibre Road

still connects Printing Press’ land to Washington Avenue and now connects the land to

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No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


the boulevard. Printing Press assigned some of its land to Lowe’s Home Improvement

for a store. Printing Press and Lowe’s seek direct access to the boulevard.

       Before commencing construction for Valley Mall Boulevard, Union Gap adopted

city Ordinance 2123 to govern use of the future boulevard. The ordinance intended to

provide coordinated standards for permitting access to the boulevard and to confirm that

the access rights of abutting landowners are subordinate to the public’s right and interest

in a safe and efficient arterial system. UNION GAP MUNICIPAL CODE (UGMC) 9.34.010.

Union Gap Ordinance 2123 designated the boulevard as a “controlled access arterial” and

permits driveway access to the boulevard only “when other alternatives such as an

abutting public street or internal access road are not possible for access.” UGMC

9.34.060(a).

       Union Gap possesses authority to condemn property outside its jurisdiction. RCW

8.12.030; In re Petition of City of Long Beach, 119 Wn. App. 628, 634, 82 P.3d 259

(2004). Nevertheless, to anticipatorily quell Yakima residents’ concerns about Union

Gap’s control along Valley Mall Boulevard on Yakima’s side of the road, Union Gap and

Yakima, on March 8, 2001, entered an interlocal agreement. The two had planned the

boulevard since the late 1990s. The agreement in part reads:

              This Interlocal Agreement is made by and between the CITY OF
       YAKIMA, a Washington municipal corporation, hereinafter “Yakima,” and
       the CITY OF UNION GAP, a Washington municipal corporation,
       hereinafter “Union Gap,” each being duly authorized and acting under the


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No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


      laws of the State of Washington, pursuant to authority vested in each by the
      Interlocal Cooperation Act, RCW Chapter 39.34, as follows:
              1. Union Gap is involved in the development of a project known as
      the “Valley Mall Boulevard Extension,” which is an effort to purchase right
      of way and construct an extension of Valley Mall Boulevard from its
      present location near the I-82 Interchange in Union Gap to the Yakima Air
      Terminal, some distance to the West. Yakima supports this project and has
      allocated $590,000.00 of federal highway safety funds for the project. The
      Valley Mall Boulevard project is a cooperative venture between the
      Washington State Department of Transportation, the City of Yakima, the
      City of Union Gap, and Yakima County. The project is of major
      significance to the entire region as it would provide an important direct link
      between the air terminal and the I-82 freeway.
              2. Union Gap Ordinance No. 2271 authorized the Union Gap City
      Attorney to initiate condemnation proceedings for acquisition of the
      necessary right of way in Yakima County Superior Court Cause No. 01-2-
      00041-1.
              3. In the course of the hearing required for adjudication of use and
      necessity of this project, some land owners have argued that the Property
      sought to be condemned is located within the boundaries of the City of
      Yakima and not within the boundaries of the City of Union Gap. . . .
              4. The parties hereto are authorized by RCW 39.34.030 to exercise
      their powers of condemnation jointly, and for that purpose, the City of
      Yakima herewith assigns to the City of Union Gap all of its authority and
      attendant ability to condemn the Property for the Valley Mall Boulevard
      Project, as described in Exhibit A. For these purposes, the City of Union
      Gap may act on behalf of the City of Yakima, in its place and stead, in the
      negotiation for, condemnation and acquisition of the Property located
      within the boundaries of the City of Yakima.
              5. As partial consideration for this joint undertaking, Union Gap
      shall protect, defend, indemnify, and hold Yakima harmless from and
      against any and all claims, demands, losses, liens, liabilities, penalties,
      fines, lawsuits, and other proceedings and costs and expenses (including
      attorney’s fees and disbursements), which accrue to or are incurred by
      Yakima on or after execution of this Interlocal Agreement and arise directly
      or indirectly from or out of, relate to, or in any way are connected with
                     (1) The eminent domain proceedings or any related actions
      contemplated by this Interlocal Agreement.


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No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


                     (2) Challenges concerning the legal authority to enter into or
       implement this lnterlocal Agreement or the ordinance authorizing
       condemnation.
               ....
                     (5) The design, construction, reconstruction, installation,
       repair, maintenance, operation, alteration, or modification of the Valley
       Mall Boulevard street and transportation improvements (or other public
       improvements) on the property . . . .
               ....
               7. Yakima and Union Gap agree that this Interlocal Agreement shall
       have an indefinite duration and cannot be terminated unless both parties
       consent in writing to such termination.

Clerk’s Papers (CP) at 249-51. Yakima passed and adopted the interlocal agreement as a

city ordinance on March 6, 2001.

       In a declaration in support of Printing Press’ summary judgment motion, Yakima

City Attorney Jeff Cutter expounded on Yakima’s view of the agreement. Although

Cutter interpreted the agreement to authorize Union Gap to act as Yakima’s agent, he

declared that the:

              Interlocal Agreement simply authorized Union Gap to act on behalf
       of Yakima with respect to the condemnation of properties located within
       Yakima jurisdiction. Union Gap acted as “agent” for City of Yakima. It
       did not change municipal boundaries, relinquish jurisdictional authority or
       otherwise modify land use authority with respect to properties lying within
       the City of Yakima.

CP at 1046. Jeff Cutter challenged Union Gap’s claim that Yakima assigned Union Gap

the former’s “regulatory authority to regulate the Boulevard.” CP at 963.

       To facilitate the Valley Mall Boulevard project after signing the interlocal

agreement, Union Gap procured the needed land through a combination of voluntary

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No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


purchases and condemnation proceedings. Around 2000 and before signing the interlocal

agreement, Union Gap contacted Printing Press to acquire a strip of the southern portion

of its land to lengthen the boulevard to the west. Although some Yakima residents

contested Union Gap’s authority to condemn land located in Yakima, Printing Press did

not. Printing Press’ land then rested in both Yakima and Union Gap.

       During negotiations for the purchase of Printing Press’ land, Union Gap paid

Printing Press $750 to conduct an appraisal of the needed 95,377 square feet of land.

Printing Press’ appraisal acknowledged that immediate access to its land “is by Longfibre

Road which is a satisfactory two lane rural road,” and that “[w]hen Valley Mall

Boulevard is completed, immediate access [to the boulevard] may not be enhanced due

[to] the rise of [a] bridge over the railroad tracks.” CP at 324. Printing Press denies that

this appraisal language contemplated Union Gap’s acquisition of Printing Press’ access

rights to the boulevard.

       Printing Press’ appraisal valued the portion of 95,377 square feet of property to be

taken by Union Gap for Valley Mall Boulevard at $125,600. Union Gap ultimately

purchased the plot from Printing Press for $45,000. According to Printing Press, it

donated the difference between the purchase price and the value of the property to the

boulevard project. As part of the transfer, Printing Press required Union Gap to sign a

“Donee Acknowledgment,” that recognized that Union Gap acquired all of Printing

Press’ “right, title or interest in the property by quitclaim deed.” CP at 239.

                                              6
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


       On March 19, 2001, Printing Press executed a quitclaim deed to a narrow strip of

land for use as part of Valley Mall Boulevard in favor of Union Gap. The deed read, in

relevant part:

                 Valley Mall Boulevard Extension

              The Grantor, Printing Press Properties, LLC, a Washington Limited
       Liability Company, for and in consideration of the sum of TEN and No/100
       —($10.00)—Dollars, and other valuable consideration, conveys and
       quitclaims to the City of Union Gap, a Municipal Corporation of the State
       of Washington, the following described real estate, and any after acquired
       interest therein, situated in Yakima County, in the State of Washington, to
       the same extent and purpose as if the rights herein granted had been—
       acquired under Eminent Domain statutes of the State of Washington.

CP at 394. The transfer included only a small portion of Printing Press’ parcel. Printing

Press reserved no easement or other interest in the transferred land. Nevertheless, Jay

Sentz, managing member of Printing Press, declares that the deed did not transfer access

rights to the boulevard. He characterizes the deed as only transferring a right of way to

Union Gap. UGMC 9.34.030(b) recognizes that “every owner of property which abuts a

controlled access arterial has the right to reasonable access to that roadway.” Printing

Press continued to own land immediately abutting the purchased land and north of Valley

Mall Boulevard.

       The city of Union Gap commenced construction of Valley Mall Boulevard

following the acquisition of all needed land, and Union Gap remained the lead agency on

all project phases. The total cost of the boulevard project was $21.5 million. Union Gap


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No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


contributed seven percent of the total project cost. Most funding came from the federal

government. The city of Yakima contends it served as the certification acceptance

agency for the project and that its duties as this agency included review and approval of

all project designs, plans, specifications, utility and railroad agreements, consulting and

engineering agreements, construction estimates, award and execution of construction

contracts, and construction administration. Union Gap claims it entered all agreements

regarding the design and construction of the arterial road.

       Valley Mall Boulevard now constitutes a completed four-lane “Intermodal

Connector” providing vital access between Interstate 82, lying east of Union Gap and

Yakima, and the commercial, industrial and agricultural businesses to the west of the

cities of Yakima and Union Gap. The boulevard extends 3.3 miles with a half mile

section of its centerline aligned with the boundary between Union Gap and Yakima. The

speed limit on the boulevard is 40 m.p.h. Union Gap pays all bills for street lighting.

Union Gap performs boulevard striping, sweeping, maintenance, vegetation control, and

snow and ice control. The Union Gap Police Department responds to calls for

emergencies on the boulevard.

       In 2006, the city of Union Gap approached Printing Press Properties to participate

in a partnership to improve the Valley Mall Boulevard and Longfibre Road intersection.

The two entities, along with Clary Properties, LLC, an owner of land to the west of

Longfibre Road, reached a development agreement, pursuant to RCW 36.70B.170, to

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No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


recondition the intersection. Before the entry of the agreement, a wedge-shaped portion

of Printing Press’ land rested within the municipal boundaries of the city of Union Gap,

with the remaining larger portion of Printing Press’ parcel within the boundaries of the

city of Yakima. We refer to the area formerly inside Union Gap limits as “the wedge.”

We refer to the remaining larger portion as the “eastern portion.” Although the boundary

between the two cities generally runs east and west, the boundary along Longfibre Road

then turned and ran north and south. The wedge lies immediately to the east of Longfibre

Road. We will refer to all of Printing Press land, in other words, both the wedge and the

eastern portion, as the “entire tract.” The property constitutes one tax parcel. Other than

the wedge formerly resting in Union Gap, no reason existed to distinguish the wedge

from the eastern portion of the land. Exhibit B, attached to the development agreement,

assists in identifying and understanding the layout of Printing Press’ land, Valley Mall

Boulevard, Longfibre Road, and the Clary land. We attach the exhibit to this opinion.

We also attach two overhead photographs of the area.

       Yakima and Union Gap agreed to adjust the municipal boundaries so that all of the

Printing Press’ property would sit within the boundaries of the city of Yakima. In other

words, Yakima, with the permission of Union Gap, annexed the wedge. Union Gap and

Printing Press agreed to extend Longfibre Road farther south to provide greater access to

Printing Press’ land and to add utilities in the improved area.



                                              9
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


       On February 28, 2008, the city of Union Gap and Printing Press entered a

development agreement to consummate the understanding with regard to improvement of

the Longfibre Road and Valley Mall Boulevard intersection. A major question on appeal

is whether the development agreement covers only the wedge formerly within Union Gap

or Printing Press’ entire tract. The recording cover sheet for the agreement contains a

“legal description, abbreviated form” that reads:

       Legal Description (abbreviated form: i.e. lot, blk., plat or S.T.R.
       quarter/quarter)
       SE1/4 SW1/4 SE1/4 S. 31, T 13N, R. 18 EWM
              Additional legal is on page _____
       Assessor’s Property Tax/Parcel Account Number
       191331-44004

CP at 602. The first page of the development agreement contains the following block:

       Grantors: (1) PRINTING PRESS PROPERTIES, LLC

       Grantee: (1) CITY OF UNION GAP

       Abbreviated Legal Description: SE 1/4 SW 1/4 SE 1/4 S31, TI3N, R18 EWM

       Complete legal description is attached as Exhibit A to this document.

       Assessor’s Tax Parcel ID Nos.: 191331-44004

CP at 603. Exhibit A attached to the development agreement reads:

              Exhibit “A”

              That part of the southeast quarter of the southwest quarter of the
       southeast quarter of Section 31, Township 13 North, Range 18 East W.M.,
       lying westerly of the city limits of Yakima, Washington.


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No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


CP at 612 (emphasis added). The property to the west of the Yakima limits is the wedge.

The body of the agreement declares:

                                            RECITALS
              A. Whereas, the City of Union Gap, in partnership with the Yakima
      County Development Association (YCDA), is seeking to facilitate the
      development of commercial and light industrial-zoned property in the
      vicinity of Ahtanum Road, Valley Mall Boulevard and Longfibre Road;
      and
              B. Whereas, as a part of this process the City has applied for and
      received grant and loan funds to implement a multi-phase strategy of road,
      water and intersection improvements (“Phase 2 Road Improvements”) to
      serve commercial and light industrial zoned properties; and
              C. Whereas, Bud Clary Toyota of Yakima (“Clary”) and PPI
      [Printing Press Properties] are owners of real property located at the
      intersection of Valley Mall Boulevard and Longfibre Road and intend to
      develop such properties (the “Subject Properties”); and
              D. Whereas, the development of the subject Properties is facilitated
      by the extension of Longfibre Road and significant community benefits are
      derived from the further development of a traffic grid system, extension of
      public water services and potential employment and tax revenues derived
      from development;
              E. Whereas, the parties to this Agreement desire to establish a
      framework, to the extent authorized by state law, in order to integrate and
      expedite the timely review, approval and construction of the proposed
      private development and supporting public improvements.
              Now, therefore be it resolved that the parties hereby agree as
      follows:
                                       AGREEMENT
              1. Proposed Private Development. PPI owns or controls certain real
      properties located in the City of Union Gap, commonly known as the PPI
      site, legally described on Exhibit “A” attached hereto and incorporated
      herein by this reference. It is the intent of PPI to sell and/or develop the
      subject property with commercial or light industrial land uses consistent
      with applicable municipal development standards.
              2. Amendment of Municipal Boundaries. The PPI property is
      currently subject to split jurisdiction between City of Yakima and City of
      Union Gap. The approximate location of the current municipal boundary is

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No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


      set forth on attached Exhibit B. . . . It is agreed that the entire PPI parcel
      will be incorporated into the City of Yakima. All of the road right-of-way
      improvements for Longfibre Road as it extends north from Valley Mall
      Boulevard shall be within the jurisdiction of the City of Union Gap.
              3. Participation in Phase 2 Road Improvement. PPI shall participate
      in Longfibre Road Phase 2 Road Improvements as follows:
              a. PPI shall dedicate to the City such right-of-way and
      slope/drainage easements that may be required to extend Longfibre Road as
      depicted in Exhibit C. . . . In general terms the right-of-way will include
      the following:
              i. The improvements will include street, sidewalk, lighting and storm
      drainage. . . .
              ii. Accommodation of intersection improvements and signalization
      equipment including turn lanes necessary on Longfibre Road at the
      intersection with Valley Mall Boulevard.
              ....
              c. PPI shall incorporate the following access management
      requirements into all site development plans:
              i. PPI acknowledges that provisions of UGMC Chapter 9.34 may
      prohibit direct access to Valley Mall Boulevard. Any access to the property
      from Valley Mall Boulevard shall be subject to municipal review and
      conditioning at time of project permit application.

CP at 603-05 (emphasis added). The parties’ dispute focuses on subsection 3.c.i. of the

agreement. We will alternatively refer to this subsection as the “access subsection” or

“subsection i.” The development agreement continues in section 3.c:

             ii. The centerline of the southerly most access point from the PPI
      property to Longfibre Road shall be no closer than 200-feet from the south
      property line to the subject property.
             iii. Additional access points to Longfibre Road shall be a minimum
      of 200-feet apart as measured centerline to centerline and must be
      coordinated with access points on the west side of Longfibre Road, unless
      otherwise approved by the Director of Public Works.
             d. PPI will be responsible for and shall contribute its identified share
      of the costs associated with the construction of the Phase 2 Road
      Improvements, such estimate of project funding set forth on Exhibit D. PPI

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No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


      shall not be responsible for any portion of the improvement costs for
      extension of the City of Union Gap water main or intersection
      improvements (including traffic signal improvements) to Longfibre
      Road/Valley Mall Boulevard. . . .
              ....
              4. SIED Grant and Loan Funds. City has applied for and received a
      grant of up [to] $278,000 and loan of up to $278,000 from the Yakima
      County Supporting Investments in Economic Development (SIED) Board
      to assist in the financing of Phase 2 - Longfibre Road Improvement
      Projects. . . . Such improvements include approximately 600 linear foot
      arterial road extension north from Valley Mall Boulevard . . . ; intersection
      improvements and traffic signals at Valley Mall Boulevard and Longfibre
      Road . . . ; and water main extension (approximately 1300 LF) along the
      east side of the Clary property . . . . These improvements subject to
      conditions and provided that:
              a. City shall design, build, construct, and maintain the improvements
      associated with the extension of Longfibre Road and the extension of the
      City water main in accordance with the terms and conditions of the SIED
      Contract . . . .
              ....
              c. The City shall consult with PPI prior to taking the following
      actions:
              i. the approval of the plans and specifications for Schedule A of the
      SIED funded improvements and,
              ii. Approval of the lowest responsible bid for Schedule A
      improvements.
              ....
              d. . . .
              iv. Except as set forth above, PPI shall have no responsibility for
      costs, expenses or charges with respect to Phase 2—Longfibre Road
      Improvement Projects
              e. PPI shall, within thirty (30) days following written request by the
      City, make a cash payment to the City for the down payment portion of the
      SIED funded improvements of $10,493. The failure to perform may result
      in the suspension or termination of any or all SIED funded activities.
              ....
              8. Attorney’s Fees. In the event that any lawsuit is instituted by
      either party to this Agreement arising out of or pertaining to this
      Agreement, including any appeals and collateral actions relative to such

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No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


       lawsuit, the substantially prevailing party as determined by the court shall
       be entitled to recover its reasonable attorney’s fees, expert witness fees, and
       all costs and expenses incurred relative to such lawsuit from the
       substantially nonprevailing party, in addition to such other relief as may be
       awarded.
               ....
               13. Reservation of City Authority. As required by RCW
       36.70B.170(4), and notwithstanding the terms of this Agreement, Union
       Gap reserves the right to establish and impose new or different regulations
       or to impose new mitigating measures to the extent required to address a
       serious threat to public health or safety.

CP at 605-08. Printing Press contends that the development agreement does not cover

the eastern portion of its land. Union Gap claims it would not have executed the

development agreement and participated in the extension of Longfibre Road and the

improvements along Longfibre Road without the development agreement covering all of

Printing Press’ land.

       In the fall of 2012, a Lowe’s store proposed to move its retail location from Union

Gap to Yakima. Printing Press believes that Union Gap has retaliated to render Lowe’s

move costly, such as thwarting access from the store directly to Valley Mall Boulevard.

Union Gap does not deny the tax implications stemming from Lowe’s change in

locations, but denies any reprisal.

       Printing Press and Lowe’s entered into a contract under which Lowe’s constructed

a new retail store, whose footprint lies inside both the wedge and the eastern portion of

the land. Under Printing Press’ agreement with Lowe’s, if Printing Press secures a permit

for direct access of a driveway onto the boulevard, within five years of Lowe’s opening

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No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


business, Lowe’s will reimburse Printing Press for all driveway construction and

permitting costs up to $170,000. Printing Press thereafter commenced steps to gain direct

access to Valley Mall Boulevard.

      Consistent with the development agreement, Printing Press Properties submitted

permit applications to the city of Union Gap in early 2015 to construct a driveway with

access onto Valley Mall Boulevard. Union Gap describes its review of that application

with a declaration from the Union Gap Director of Public Works & Community

Development Dennis Henne, who testified:

              Union Gap spent significant time reviewing this application and
      meeting with consultants to determine whether it would be safe to grant this
      permit and whether it met applicable highway requirements. For instance,
      Union Gap consulted with HLA Engineering and Land Surveying regarding
      safety concerns over sight, distance, and speed, and ultimately determined
      that the proposed project did not meet generally acceptable design practices
      for an Intermodal Connector and was unsafe. The American Association of
      State Highway and Transportation Officials (ASSHTO) Policy on
      Geometric Design of Highways and Streets, provide guidance to the
      designer by referencing a range of values for critical dimensions. The
      manual recommends a minimum sight distance for passing decisions on a
      designed 45 [m.p.h.] Rural and Urban Arterial to be 1625 (ft), more than
      double the sight distance of the proposed [Printing Press Properties]
      driveway.

CP at 240-41.

      Union Gap worries about low or short sightlines on the boulevard due to

undulations in the road caused by the bridge over the train tracks. Union Gap claims

drivers on the boulevard that would slow or stop at Lowe’s driveway could cause rear-


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No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


end collisions and traffic congestion. Printing Press disputes the safety concerns about

access to its land from Valley Mall Boulevard and criticizes Union Gap Public Works

Director Dennis Henne for lacking a professional engineer’s license.

       On August 25, 2015, Union Gap sent Printing Press a letter denying the access

permit application. On September 15, 2015, Printing Press submitted a letter to Union

Gap withdrawing its application. Printing Press chose not to appeal and subsequently

submitted another application to the city of Yakima.

       The city of Yakima approved two permits for Printing Press. The first permit

authorizes excavation for the proposed driveway and demolition of existing boulevard

improvements, including sidewalks and curbing. Yakima also issued an engineering

permit to construct the driveway. Printing Press then dedicated an easement on its land to

the public for the driveway. Yakima officials did not share the safety concerns expressed

by Union Gap about Printing Press’ land’s access to Valley Mall Boulevard.

       Union Gap notified Printing Press in writing that Union Gap, not Yakima,

controlled access to the boulevard and that Printing Press lacked authority to construct

the driveway. Nonetheless, Printing Press started construction, but stopped short of

cutting curbs or sidewalks and accessing the boulevard.

                                      PROCEDURE

       Union Gap filed suit against Printing Press to obtain an injunction precluding

Printing Press from cutting curbing along Valley Mall Boulevard and building a driveway

                                            16
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


to access the boulevard. Union Gap asserted a cause of action for breach of the

development agreement. Union Gap alleged that a Washington city may control real

property it owns and a private party cannot force a city to allow direct access to a road the

city owns when: (1) the private landowner lacked access to the road before the city

improved the road, (2) the private landowner signed a contract that prohibited direct

access onto the road, (3) the city provided, at great expense, alternative access to the

private land from an adjacent public road, and (4) the city purchased the land, on which

the road sits, in fee title from the private landowner. In response, Printing Press

emphasized that its land lies entirely inside the jurisdiction of the city of Yakima and

Yakima holds authority to determine access from the north of the boulevard. Printing

Press also contended that Union Gap’s failure to appeal, under the Land Use Petition Act

(LUPA), chapter 36.70C RCW, the city of Yakima’s approval of the grade and access

permits to construct the driveway bars this suit as untimely.

       Union Gap and Printing Press filed cross-motions for summary judgment. By its

motion, Union Gap requested an order declaring that Printing Press lacked a legal right to

open an access driveway from its property to Valley Mall Boulevard. Union Gap also

sought an injunction precluding Printing Press from cutting the curb along the boulevard.

Printing Press, by its summary judgment motion, sought dismissal of all of Union Gap’s

claims.



                                             17
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


       The trial court granted Printing Press’ motion. The trial court concluded that

Union Gap could not regulate outside its jurisdiction and that the development agreement

covered only the wedge. Pursuant to the parties’ contract, the trial court granted Printing

Press reasonable attorney fees and costs as the prevailing party.

                                  LAW AND ANALYSIS

       Under familiar principles of summary judgment jurisprudence, this reviewing

court reviews an order for summary judgment de novo. Keck v. Collins, 184 Wn.2d 358,

370, 357 P.3d 1080 (2015). We must determine whether “‘the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.’” Parkin v. Colocousis, 53 Wn. App. 649, 653,

769 P.2d 326 (1989) (quoting CR 56(C)). Both parties sought summary judgment before

the trial court. Neither party contends disputed facts preclude a grant of summary

judgment.

                                   Land Use Petition Act

       Printing Press asks that this court deny review of the merits of the city of Union

Gap’s appeal. Printing Press observes that Union Gap failed to appeal the city of

Yakima’s decision to issue permits for the driveway, and, thus, Printing Press asserts that

Washington’s LUPA bars this suit. Because of the nature of Union Gap’s suit, we

disagree.

                                             18
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


       LUPA pertains to judicial review of all land use decisions with some exceptions

noted in the statute. RCW 36.70C.010-.030; Chelan County v. Nykreim, 146 Wn.2d 904,

916, 52 P.3d 1 (2002). In enacting LUPA in 1995, the Washington Legislature

determined that LUPA “shall be the exclusive means of judicial review of land use

decisions,” with certain specific exceptions. RCW 36.70C.030(1); Chelan County v.

Nykreim, 146 Wn.2d at 917 (emphasis and footnote omitted).

       LUPA bars a land use petition, and the court may not grant review of the petition

unless the petitioner files the petition with the court within twenty-one days of the

issuance of the land use decision. RCW 36.70C.040(3); Asche v. Bloomquist, 132 Wn.

App. 784, 799, 133 P.3d 475 (2006). LUPA’s statute of limitations begins to run on the

date an agency issues a land use decision, and even illegal decisions must be challenged

in a timely, appropriate manner. Habitat Watch v. Skagit County, 155 Wn.2d 397, 407-

08, 120 P.3d 56 (2005). Union Gap never filed an appeal, let alone a timely appeal, of

the permits issued by Yakima to Printing Press.

       We agree that the city of Yakima’s issuance to Printing Press of the excavation

and engineering permits constituted land use decisions. A “land use decision” includes:

              a final determination by a local jurisdiction’s body or officer with
       the highest level of authority to make the determination, including those
       with authority to hear appeals, on:
              (a) An application for a project permit or other governmental
       approval required by law before real property may be improved, developed,
       modified, sold, transferred, or used . . . .
              ....

                                             19
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


              (c) The enforcement by a local jurisdiction of ordinances regulating
       the improvement, development, modification, maintenance, or use of real
       property.

RCW 36.70C.020(2) (emphasis added). We hold, however, that LUPA does not control

Union Gap’s suit.

       The city of Union Gap does not directly challenge the issuance of the permits by

Yakima. Union Gap instead seeks to enforce its contract rights. If a cause of action

arises independently of the relevant land use petition, the claim is not barred. Asche v.

Bloomquist, 132 Wn. App. at 800 (2006). Claims that do not depend on the validity of a

land use decision are not barred. Asche v. Bloomquist, 132 Wn. App. at 800.

       Printing Press labels Union Gap’s suit “a collateral attack” on a land use decision.

Printing Press claims that the current lawsuit would be unnecessary but for the issuance

of the permits. According to Printing Press, barring Union Gap’s suit as untimely would

serve LUPA’s and Washington’s stated policy of favoring administrative finality in land

use decisions. Samuel’s Furniture, Inc. v. Department of Ecology, 147 Wn.2d 440, 458,

54 P.3d 1194 (2002).

       Printing Press contends that Holder v. City of Vancouver, 136 Wn. App. 104, 147

P.3d 641 (2006) and Asche v. Bloomquist, 132 Wn. App. 784 (2006) compel a conclusion

that Union Gap’s litigation arises directly from the permits issued by the city of Yakima

and thereby LUPA controls. In Asche, a neighboring property owner failed to file a

LUPA appeal related to the issuance of a county building permit for residential

                                             20
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


construction on an adjoining property. Printing Press emphasizes that the court, in Asche,

recognized the interests of an adjacent property owner and determined that injunctive

relief was available through a LUPA appeal. Nevertheless, we distinguish Asche because

the neighboring property owner challenged the issuance of the permit on the basis that the

county violated its zoning code when issuing the permit. The property owner did not

assert any right under a contract or independent of the county code.

       In Holder v. City of Vancouver, a property owner challenged the city of

Vancouver’s hearing examiner’s order holding that he violated a city ordinance by

parking and storing vehicles on unimproved surfaces. The court refused to entertain the

suit because the property owner abandoned any claim under LUPA and LUPA controlled

the challenge to the hearing examiner’s decision.

       Woods View II, LLC v. Kitsap County, 188 Wn. App. 1, 352 P.3d 807 (2015) bears

more relevance to Union Gap’s suit. A developer alleged that Kitsap County negligently

delayed the issuance of building permits. The county argued that its permitting actions

could be challenged only under LUPA and the developer’s failure to appeal under LUPA

barred the suit. This court agreed with the developer that LUPA did not bar its action

because it sought monetary compensation rather than a modification of a land use

decision.

       If Union Gap limited its claims to an argument that the city of Yakima lacked

authority to issue the permits to Printing Press or that Yakima violated its code when

                                            21
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


issuing the permits, we might agree with Printing Press. Nevertheless, Union Gap’s suit

rises independently of the Yakima permits. Union Gap relies on its contract with Printing

Press, which contract the parties entered outside of and before the city of Yakima’s

permit issuances. If Printing Press started construction on the driveway in the absence of

any permit, Union Gap would have filed this same suit alleging breach of contract under

the parties’ development agreement. Printing Press contravenes the intent of LUPA by

using the act as an excuse to shirk its contractual obligations under the development

agreement with Union Gap.

       Printing Press underscores that Union Gap seeks to enjoin the exercise of the

rights granted by the Yakima permits. Nevertheless, Union Gap does not seek to enjoin

enjoyment of the permits because of any fault in the issuance of the permits, but because

Printing Press’ claimed rights coincide with the rights Printing Press surrendered under

the development agreement.

       We analogize to a hypothetical situation under which a neighborhood contains

restrictive covenants prohibiting the harboring of large commercial animals. Harry

Smith, who resides in the neighborhood, seeks and obtains a variance to the city zoning

code, which variance permits his building of a cow pen. Smith intends to raise beef cattle

for sale to others. Smith’s neighbor, Betty Ross, does not appeal the issuance of the city

permit. Instead Ross sues Smith for violating the restrictive covenants. LUPA should



                                            22
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


not bar the enforcement of private agreements concerning the use of land. Ross does not

challenge the city’s authority to issue the permit.

                               The Development Agreement

       We now address the merits of city of Union Gap’s appeal. Union Gap asserts

numerous arguments. Union Gap contends that Printing Press would breach the

development agreement by cutting access to Valley Mall Boulevard from its land. Union

Gap maintains that, apart from the development agreement, it possesses authority as the

landowner, under which the boulevard runs, to preclude access to the boulevard. Union

Gap posits that the deed from Printing Press to the city reserved no access rights or

easement allowing entrance to the boulevard. Union Gap argues that the city of Yakima

assigned Union Gap the right to control access to the boulevard even from property

located inside the city limits of Yakima.

       In response to Union Gap’s appeal, Printing Press contends that Union Gap lacks

regulatory authority to preclude access to the boulevard. Printing Press also argues that

any prohibition contained in the development agreement to access Valley Mall Boulevard

concerned only the wedge and not the eastern portion. Printing Press wishes to place the

access point to Valley Mall Boulevard inside the eastern portion. Printing Press also

contends that any prohibition on access to the boulevard is precatory, not mandatory, in

nature. Printing Press furthermore argues that the development agreement could not

apply to its property because a city may only enter a development agreement for land

                                             23
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


inside its city limits. Finally, Printing Press asserts that, as an abutting landowner, it is

entitled to access to West Valley Mall Boulevard and the city of Yakima authoritatively

granted it access.

       We hold that the development agreement between the city of Union Gap and

Printing Press precludes Printing Press direct access to the boulevard. Therefore, we do

not address Union Gap’s other contentions.

       Union Gap and Printing Press signed a development agreement seven years after

Printing Press conveyed the subject land to Union Gap for Valley Mall Boulevard.

Union Gap contends that the agreement grants it the prerogative to deny access to the

boulevard from Printing Press land. We repeat the access subsection or subsection i that

controls the appeal:

              i. PPI acknowledges that provisions of UGMC Chapter 9.34 may
       prohibit direct access to Valley Mall Boulevard. Any access to the
       property from Valley Mall Boulevard shall be subject to municipal review
       and conditioning at time of project permit application.

CP at 605 (emphasis added). Union Gap further contends that section i encompasses

Printing Press’ entire tract.

       Printing Press argues that the parties intended the development agreement,

particularly the access subsection, to govern only the wedge portion originally located

within Union Gap City limits. Printing Press also contends that the language of the

access subsection portends the possibility of granting of some access because the word


                                              24
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


“may,” preceding the word “prohibit,” does not afford unlimited control. Printing Press

contends the word “may” recognizes some uncertainty as to whether Union Gap has legal

authority to deny access to Valley Mall Boulevard outside its jurisdiction and that, in fact,

Union Gap lacks such authority.

       Our task is to discern the intent of the parties to the development agreement.

Kelley v. Tonda, 198 Wn. App. 303, 311, 393 P.3d 824 (2017). This task entails our

selecting principles of contract construction that helps us best discern the intent of the

parties rather than imposing a preferable outcome. Neither party asks us to construe the

contract against the other party on the basis that the other party drafted the language.

Neither party forwards any conversations during the negotiations or drafting of the

agreement that would assist in construing the contract.

       Union Gap alleges it would never have entered into the development agreement,

nor have ameliorated Longfibre Road, if it knew that Printing Press intended to disregard

the contract and construct the driveway over Union Gap’s objection. We find this

testimony unhelpful because Union Gap provides no evidence that it stated this

understanding to Printing Press. We do not consider a party’s unexpressed subjective

intent. Grant County Port District No. 9 v. Washington Tire Corp., 187 Wn. App. 222,

233, 349 P.3d 889 (2015).

       We principally rely on three principles of contractual interpretation. First, a court

will view the contract as a whole, interpreting particular language in the context of other

                                             25
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


contract provisions. Viking Bank v. Firgrove Commons 3, LLC, 183 Wn. App. 706, 713,

334 P.3d 116 (2014). Second, courts must read each contract as an average person would

read it without giving it strained or forced meaning. Mid-Century Insurance Co. v.

Henault, 128 Wn.2d 207, 213, 905 P.2d 379 (1995). Third, we consider the actions of

the parties subsequent to the signing of the contract as evidence of intent at the time of

signing. Higgins v. Stafford, 123 Wn.2d 160, 165, 866 P.2d 31 (1994); In re Estate of

Wimberley, 186 Wn. App. 475, 505, 349 P.3d 11 (2015).

         We first decide if the access subsection covers the entire tract, including the

eastern portion. The development agreement employs various terms when mentioning

Printing Press’ real estate. The ever changing words both complicate our inquiry and

provide clues in answering this question.

         The recording cover sheet does not use any term for Printing Press’ land other than

“legal description, abbreviated form.” CP at 403. The legal description on the cover

sheet presumably describes the entire tract. The first page of the development agreement

also contains no term for the land and repeats the same abbreviated legal description.

Nevertheless, the first page adds the sentence: “Complete legal description is attached as

Exhibit A to this document.” CP at 404. Then, to Printing Press’ advantage, Exhibit A

reads:

                That part of the: southeast quarter of the southwest quarter of the
         southeast quarter of Section 31, Township 13 North, Range 18 East W.M.,
         lying westerly of the city limits of Yakima, Washington.

                                               26
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC



CP at 413 (emphasis added). The wedge was then Printing Press’ only property west of

the Yakima limits.

       Printing Press astutely argues that the attached legal description shows the intent

to limit coverage of all provisions of the development agreement to the wedge,

particularly when the cover page refers to this legal description as the “complete”

description. Nevertheless, the first page of the agreement does not explicitly limit all of

the terms of the development agreement to a select portion of Printing Press’ land or, in

its body, define any term related to the land as limited to the wedge. For this reason and

because the development agreement loosely employs terms related to Printing Press’

land, we disagree with Printing Press.

       The introductory paragraph to the development agreement indicates that the

parties entered the agreement for the purposes of establishing standards for “development

of PPI [Printing Press] property.” CP at 404. The agreement nowhere expressly defines

“PPI” property. No evidence suggests that Printing Press only sought to develop the

wedge. Instead, the wedge and the eastern portion are not distinct tracts and constitute

one tax parcel. Lowe’s use of both the wedge and the eastern portion hints that Printing

Press sought, at the time of the development agreement, to develop its entire tract.

       Recitals paragraphs C and D reads:

             C. Whereas, Bud Clary Toyota of Yakima (“Clary”) and PPI are
       owners of real property located at the intersection of Valley Mall Boulevard

                                             27
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


       and Longfibre Road and intend to develop such properties (the “Subject
       Properties”); and
              D. Whereas, the development of the Subject Properties is facilitated
       by the extension of Longfibre Road and significant community benefits are
       derived from the further development of a traffic grid system, extension of
       public water services and potential employment and tax revenues derived
       from development;

CP at 405. Finally, the development agreement imposes a term for property in quotation

marks. The “subject properties” consists of the land owned by Clary and Printing Press

at the intersection of Longfibre Road and Valley Mall Boulevard that the respective

landowners intend to develop. Although the wedge is closer than the eastern portion to

the proposed intersection of Longfibre Road and Valley Mall Boulevard, the entire tract

constituted one unified parcel when the parties signed the development agreement. The

eastern portion also constitutes land owned by Printing Press at the intersection, when we

consider Printing Press’ property as a whole. More importantly, as already indicated,

Printing Press intended to develop its entire tract.

       Paragraph one of the body of the agreement declares:

               1. Proposed Private Development. PPI owns or controls certain real
       properties located in the City of Union Gap, commonly known as the PPI
       site, legally described on Exhibit “A” attached hereto and incorporated
       herein by this reference. It is the intent of PPI to sell and/or develop the
       subject property with commercial or light industrial land uses consistent
       with applicable municipal development standards.

CP at 405 (emphasis added). Again, Exhibit A legally describes only the wedge. But we

note that paragraph one refers to the wedge as the PPI “site,” not the “property,” a


                                              28
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


nomenclature that suggests that “property,” when used in the agreement includes land

more than the wedge. The second sentence in paragraph one could be read to imply that

the word “site” coincides in meaning with the word “subject property.” Nevertheless,

PPI intended to develop the eastern portion for commercial uses. Lowe’s is a commercial

use.

       We move to paragraph 2 of the agreement, which reads:

               2. Amendment of Municipal Boundaries. The PPI property is
       currently subject to split jurisdiction between City of Yakima and City of
       Union Gap. The approximate location of the current municipal boundary is
       set forth on attached Exhibit B. . . . It is agreed that the entire PPI parcel
       will be incorporated into the City of Yakima. All of the road right-of-way
       improvements for Longfibre Road as it extends north from Valley Mall
       Boulevard shall be within the jurisdiction of the City of Union Gap.

CP at 405 (emphasis added). This paragraph strongly intimates that the term “property”

includes the entire tract and the development agreement covers the entire tract. The first

sentence mentions that the “PPI property” lies in both the city of Yakima and the city of

Union Gap. At the time of the development agreement, only the eastern portion lay

inside Yakima. In the third sentence, the term “parcel” is used for the first time. The

paragraph does not refer to the PPI “site” as described in Exhibit A. The parties agree, in

the third sentence, to place the “entire PPI parcel” inside the jurisdiction of Yakima.

Thus, the agreement necessarily addresses the status of Printing Press’ entire tract.

       Important to our ruling is Exhibit B to the development agreement. The exhibit is

a map of the area. The map imposes the label “PPI Property” inside the eastern portion.

                                             29
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


This label establishes an intent to consider PPI’s property, for purposes of the

development agreement, as the entire tract.

       We come now to the critical subsection 3, which declares:

              c. PPI shall incorporate the following access management
       requirements into all site development plans:
              i. PPI acknowledges that provisions of UGMC Chapter 9.34 may
       prohibit direct access to Valley Mall Boulevard. Any access to the property
       from Valley Mall Boulevard shall be subject to municipal review and
       conditioning at time of project permit application.

CP at 406 (emphasis added). The first sentence recognizes the potential of no direct

access to Valley Mall Boulevard. The language does not suggest any section of the entire

tract automatically receives direct access. If the parties wished the access subsection to

deny access only from the wedge, the parties could have referred to “the PPI site

described on Exhibit A” as it did in paragraph one of the agreement. According to the

second sentence, Union Gap must approve “any access to the property from Valley Mall

Boulevard.” CP at 406 (emphasis added). Throughout the development agreement, the

term “property” typically refers to the entire tract. Exhibit B particularly labels the east

land as “PPI Property.” Conceivably “municipal review” in the last paragraph could refer

to review by the city of Yakima, but we consider such a construction strained since the

first sentence already refers to that portion of the Union Gap Municipal Code establishing

Union Gap’s review of plans for access to an arterial.

       The remainder of section 3c of the development agreement details access points


                                              30
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


from “PPI Property” to Longfibre Road. No language in the development agreement

discloses details for any access to Valley Mall Boulevard. If Printing Press retained some

right to direct access to Valley Mall Boulevard, one might expect the parties to delineate

that important right, together with the particulars of the right, in the development

agreement.

       Other reasons bolster our decision that the development agreement precluded

direct access from the eastern portion to Valley Mall Boulevard without a permit from

Union Gap. The eastern portion lies closer to the bridge over the railroad tracks than the

wedge. More reason exists to deny access from the eastern portion. Printing Press has

not forwarded any reason to permit access to Valley Mall Boulevard from the eastern

portion, but not the wedge.

       The development agreement’s principal, if not sole, purpose was to improve

access to Printing Press’ entire tract by improving Longfibre Road. Opening another

portion of the entire tract to access Valley Mall Boulevard conflicts with this purpose.

       Finally, in construing the development agreement, we note that Printing Press first

applied to Union Gap for a permit allowing direct access to Valley Mall Boulevard before

Printing Press sought a permit from the city of Yakima. Thus, as illustrated by its

subsequent actions, Printing Press also read the development agreement to apply to its

entire tract, not only the wedge.

       We next examine whether access subsection, subsection 3.c.i., otherwise permits

                                             31
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


Union Gap to deny Printing Press’ eastern portion access to Valley Mall Boulevard.

According to Printing Press, the development agreement simply recognizes that UGMC

Chapter 9.34 “may prohibit” direct access to Valley Mall Boulevard. CP at 605.

Whether in fact the Union Gap Municipal Code actually can prohibit access is a different

question. The phrase “may prohibit” only acknowledges the possibility of Union Gap’s

ability to prohibit access and to determine whether that possibility can come into fruition

requires an examination as to the powers of Union Gap to act outside its jurisdiction.

       The only law cited by Printing Press for the proposition that Union Gap cannot

extend the provisions of its municipal code to land in the city of Yakima is Washington

Constitution article XI, § 11. Article XI, § 11 declares:

               Any county, city, town or township may make and enforce within its
       limits all such local police, sanitary and other regulations as are not in
       conflict with general laws.

Printing Press cites no case decided under the constitutional provision, let alone a case

that suggests that Union Gap violates this constitutional section under the appealed

circumstances.

       We observe that Union Gap does not seek to impose its municipal code on land

outside its city limits without permission from the landholder. By signing the

development agreement and for valuable consideration, Printing Press consented to the

application of the code provisions. In this sense, Union Gap and Printing Press merely

incorporated by reference the standards of the municipal code as part of the contract

                                             32
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


terms. Union Gap does not seek to enforce a regulation outside its limits. The city

instead seeks to enforce a contractual term. Printing Press cites no case that precludes a

city and a landowner outside the city limits from contracting to apply a municipal code

section to the contracting relationship.

       Wilson v. City of Mountlake Terrace, 69 Wn.2d 148, 417 P.2d 632 (1966)

minimally supports our position. Mountlake Terrace adopted a city ordinance

authorizing the insertion of a fluoride chemical into the city’s potable water supply. A.P.

Wilson and others resided outside the city limits. Nevertheless, due to a connection in

pipes between the city’s water system and the water district system that served Wilson

and his neighbors, residents outside city limits would also receive fluoridated water.

Wilson and others sued and alleged that the city sought to exercise its police power over

land outside city limits. The Supreme Court disagreed. The court noted that the city did

not exercise its police power over land outside city limits, but instead the fluoridation

resulted from a contract between the city and the water district. Wilson’s receipt of

fluoridated water was incidental to the city’s exercise of its police power in furnishing

fluoridated water to its inhabitants.

       Union Gap’s prohibition of cuts along Valley Mall Boulevard results from a

contract with Printing Press, not necessarily the assertion of police power jurisdiction

outside city limits. Union Gap seeks to exercise its police power over Valley Mall

Boulevard, a major thoroughfare that passes in part through its city limits. Printing Press’

                                             33
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


inability to gain direct access to the arterial is incidental to Union Gap’s promotion of

public safety of its residents and others traversing the boulevard.

          Finally, Printing Press argues that Union Gap lacked statutory authority to enter

the development agreement, at least to the extent the agreement covers the eastern portion

of land. Printing Press relies on RCW 36.70B.170, the statute that authorizes a city to

enter a development agreement. The statute reads, in pertinent part:

                 A local government may enter into a development agreement with a
          person having ownership or control of real property within its jurisdiction.
          A city may enter into a development agreement for real property outside its
          boundaries as part of a proposed annexation or a service agreement.

RCW 36.70B.170(1). Printing Press highlights that its eastern portion lies outside city

limits.

          Printing Press’ argument ignores some critical facts. First, at the time of the

execution of the development agreement, its property lay in part inside the city limits of

Union Gap. Yakima later annexed the wedge, which was not a distinct parcel at the time

Printing Press signed the agreement. Printing Press cites no law supporting a conclusion

that a city cannot enter into a development agreement that covers an entire tract of land,

part of which lies within city limits and part which lies outside city limits. Printing Press

cites no legal authority that the development agreement, or a paragraph thereof, becomes

void if the property leaves the city limits after execution of the agreement.




                                                34
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


                                         REMEDY

         As part of its summary judgment motion, Union Gap requested that the trial court

enter a declaration that Printing Press would violate the development agreement by

building the driveway and an injunction enjoining Printing Press from constructing the

driveway on its land. Because the trial court granted Printing Press a summary judgment

dismissing Union Gap’s complaint, the trial court did not address any remedies. Union

Gap asks for injunctive and declaratory relief on appeal. In its responding appeal brief,

Printing Press does not address Union Gap’s request for an injunction or declaratory

order.

         Under Washington’s Uniform Declaratory Judgments Act, chapter 7.24 RCW, the

court may enter a declaratory order when there is a justiciable controversy: (1) which is

an actual, present and existing dispute, or the mature seeds of one, as distinguished from

a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties

having genuine and opposing interests, (3) which involves interests that must be direct

and substantial, rather than potential, theoretical, abstract or academic, and (4) a judicial

determination of which will be final and conclusive. Diversified Industries Development

Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973). We conclude that this lawsuit

presents an actual, present and existing dispute between Union Gap and Printing Press

regarding Valley Mall Boulevard access. The parties hold genuine and opposing

interests, which are direct and substantial, regarding the partial demolition of the curb

                                              35
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


along Valley Mall Boulevard. The cut in the curb and resulting traffic would damage

Union Gap’s property and conflict with Union Gap’s plans and safety concerns. Any

judicial determination of the parties’ rights and obligations under the development

agreement will be final and conclusive.

       Under RCW 7.24.080, a court possesses authority, in a declaratory judgment

action, to issue further relief in addition to entering a declaratory judgment. That relief

includes a permanent injunction. Ronken v. Board of County Commissioners of

Snohomish County, 89 Wn.2d 304, 311, 572 P.2d 1 (1977). A court may issue a

permanent injunction to prevent a trespass. Hedlund v. White, 67 Wn. App. 409, 418,

836 P.2d 250 (1992). An injunction is appropriate to prevent damage to real property.

Vander Vate v. Watson, 19 Wn.2d 68, 71, 140 P.2d 964 (1943). We agree with Union

Gap that the law affords it declaratory and injunctive relief.

       Union Gap seeks a prohibition against Printing Press constructing its driveway.

We modify this request. Printing Press may build whatever driveway it wishes on its

land consistent with Yakima’s regulations. But Printing Press may not cut the curb or

sidewalks along Valley Mall Boulevard or gain direct access from its land to the

boulevard.

                                    ATTORNEY FEES

       The development agreement affords the prevailing party reasonable attorney fees

and costs. The trial court awarded Printing Press reasonable attorney fees and costs on

                                             36
No. 34740-1-III
City of Union Gap v. Printing Press Properties, LLC


entry of the summary judgment order favoring Printing Press. We reverse the award of

reasonable attorney fees and costs to Printing Press. We grant Union Gap reasonable

attorney fees and costs on appeal and for fees incurred before the superior court.

                                     CONCLUSIONS

       We reverse the summary judgment order favo~ing Printing Press and grant

judgment to Union Gap on its contract claim. We remand to the superior court to enter

an injunction precluding Printing Press from cutting the curb or sidewalks of Valley Mall

Boulevard or gaining direct access from its land to the boulevard. We also remand to the

superior court to determine the amount in reasonable attorney fees and costs to be

awarded Union Gap as the prevailing party and for fees incurred at both the trial court

and appeals court level.




WE CONCUR:



                                             Pennell, J.




                                            37
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11/7/2017                                                                             Longfibre Rd - Google Maps




    Go gle Maps                  Longflbre Rd




                                                                                                                       Imagery ©2017 Google, Map data ©2017 Google   100 ft




https://www.google.com/maps/place/Longfibre+Rd, +Union+Gap, +WA+98903/@46.5634678,-120.4949498,437m/data=!3m 1! 1e3!4m5!3m4! 1s0x5499d62856e 7287f:Ox51 e394da6e21 e603!8m2!3d46.563 ...   1/1
11/7/2017                                                                              Longfibre Rd - Google Maps



    Go gle Maps                  Longfibre Rd




                                                                                                                        Imagery ©2017 Google, Map data ©2017 Google   200 ft




https://www.google.com/maps/place/Longfibre+Rd, +Union+Gap,+WA+98903/@46.5634678,-120.4949498,87 4m/data=!3m 1 ! 1e314m5!3m4! 1s0x5499d62856e 7287f:Ox51 e394da6e21 e603!8m2!3d46.563 .. .   1/1
