                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                          January 12, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 TT PROPERTIES, a Washington Limited                                 No. 46803-4-II
 Liability Company,


                                Appellant,

        v.

 CITY OF TACOMA, a Municipal Corporation,                       PUBLISHED OPINION

                                Respondent.

       WORSWICK, J. — TT Properties (TTP) appeals a summary judgment dismissal of its

takings claim against the City of Tacoma involving two parcels of real property. It argues that

the superior court erred by granting summary judgment because there are genuine issues of

material fact about whether the City’s actions constituted a per se or otherwise compensable

taking. The City argues that even if there were a compensable taking, the City was not the liable

actor. We affirm in part and reverse in part, holding that a material issue of fact exists regarding

one parcel of property. We remand to the superior court for further proceedings consistent with

this opinion.
No. 46803-4-II


                                               FACTS

A.        The Properties

          TTP is a Washington corporation owned and operated by the Turner family. TTP owned

two properties at issue in this case: 2620 Pacific Avenue (the Pacific Avenue property), and 223

East C Street (the C Street property). Both properties have belonged to the Turner family and its

business entities for several decades.1

          Before 1952, the Pacific Avenue property covered what is now two lots on a triangular

block surrounded by Pacific Avenue to the east, 27th Avenue to the south, and former Delin

Street on a diagonal to the north and west. In 1952, the Turner family sold roughly half of the

property to the City of Tacoma and retained the southern part of the property (what is now 2620

Pacific Avenue, or the Pacific Avenue property). The northern portion which the City bought,

2610 Pacific Avenue, abutted Delin Street to the north and west. The Pacific Avenue property

retained by the Turners lacked direct access to Delin Street because of the property’s grade and a

retaining wall. But the Turners retained an express easement over the property they sold to the

City, allowing the Turners to cross the City’s property to reach Delin Street. TTP’s businesses

used Delin Street to exit the property “on a regular basis.” Clerk’s Papers (CP) at 189.

          The C Street property abuts a city-owned alleyway that is 20 feet wide. The Turners used

the alleyway as an entrance to the C Street property.2 Specifically, trucks and long-haul vehicles




1
    TTP sold the Pacific Avenue property in 2013, after the alleged taking.
2
 The alleyway was not the only entrance to the C Street property; the property also appears to
abut East 26th Street to the south.


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No. 46803-4-II


used to use the alleyway to enter the property, but needed to “swing wide” over a city-owned

railroad right-of-way beyond the alleyway to enter. CP at 191.

B.        The Project

          In 2009, the Central Puget Sound Regional Transit Authority, doing business as Sound

Transit, began a project known as the “D to M Street Track & Signal Project.” CP at 29. The

project was designed to add 1.4 miles of new tracks on a City right-of-way to help connect its

Sounder commuter rail service from the Tacoma Dome station to a new station in Lakewood.

The City passed a “Right-of-Use Agreement” (RUA) laying out its plans regarding the D to M

Street project. CP at 197. In relevant part, the RUA contemplated that Sound Transit would

need to use some city rights-of-way, including Delin Street. The City noted that “it is in the best

interests of the public that the City authorize such use of the Public Rights-of-Way in support of

Sounder Commuter Rail service.” CP at 197. Other than granting Sound Transit the right to use

various rights-of-way, the City’s involvement in the D to M Street project consisted solely of

approving and permitting Sound Transit’s plans.

          Sound Transit and its contractors carried out the necessary work for the D to M Street

project. This included closing the portion of Delin Street that previously abutted 2620 and 2610

Pacific Avenue—in other words, the portion of Delin Street that the Pacific Avenue property

accessed via its easement. Sound Transit converted this portion of the former Delin Street to a

grassy slope. The Pacific Avenue property remains accessible from Pacific Avenue and 27th

Street.

          Pursuant to a city permit, Sound Transit also placed a “utility bungalow” on the city

right-of-way abutting the alley near the C Street property. CP at 151. The bungalow encroached



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No. 46803-4-II


about one foot into the alleyway, leaving 18.97 to 19.19 feet of the 20-foot-wide alleyway

unobstructed. The remaining space in the alleyway here was more than the 16 foot minimum

width required by the City for an alleyway. Nevertheless, the bungalow made it impossible for

trucks to “swing wide” across the right-of-way to enter the alleyway and reach the C Street

property.

C.     Takings Claim

       TTP sued the City for unconstitutionally taking its property at 2620 Pacific Avenue and C

Street. It alleged that the City accomplished these takings in conjunction with Sound Transit.

TTP alleged that the removal of Delin Street damaged TTP because it was an abutting property

owner. It also alleged that the utility bungalow’s encroachment into the alleyway damaged its

property. TTP declared that the C Street property’s value was reduced because trucks could no

longer “swing wide” to enter the alley.

       The City moved for a summary judgment dismissal of all of TTP’s claims. It argued that

TTP could not obtain relief because (1) TTP had not demonstrated a takings claim, and therefore

lacked standing, and, alternatively, (2) the City was not the actor that caused any taking.

       In response, TTP asserted that the removal of Delin Street “has had a significant negative

impact on the value” of the Pacific Avenue property and that the property was sold in 2013 “at a

much reduced price.” CP at 190. It also provided a declaration from a real estate appraiser, who

said that his ongoing investigation of damages revealed that the “impact on value [at both

properties] is significant.” CP at 185.

       TTP also argued that the City “participated with Sound Transit in permanently closing

Delin Street,” and “participated with Sound Transit in constructing a substantial encroachment



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No. 46803-4-II


on the public [alleyway] abutting Plaintiff’s C Street property.” CP at 171. TTP alleged that

these were more than merely regulatory actions because they were “proprietary actions

respecting a government’s management of its public lands.” CP at 171. It alleged that the

“extensive Right of Use Agreement with Sound Transit” made the City into a “direct participant

by allowing its land to be used by Sound Transit.” CP at 173.

       The superior court orally granted the City’s summary judgment motion on the grounds

that TTP “still [has] access, and the City can go ahead and vacate a street if they want; but [TTP

still has] access on two points” at the Pacific Avenue property. Verbatim Report of Proceedings

at 18. In its written order, the superior court clarified that it granted the City’s motion for

summary judgment on the basis that “there is no compensable taking and therefore plaintiff has

no standing against the City of Tacoma.” CP at 274. TTP appeals.

                                             ANALYSIS

                                      I. STANDARD OF REVIEW

       We review a trial court’s summary judgment ruling de novo. Torgerson v. One Lincoln

Tower, LLC, 166 Wn.2d 510, 517, 210 P.3d 318 (2009). Summary judgment is appropriate only

if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any

genuine issues of material fact, and the moving party is entitled to judgment as a matter of law.

CR 56(c). A material fact is one on which the litigation’s outcome depends in whole or in part.

Atherton Condo. Apt.-Owners Ass’n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799

P.2d 250 (1990). We consider “all the facts submitted and the reasonable inferences therefrom

in the light most favorable to the nonmoving party.” Atherton, 115 Wn.2d at 516. Summary

judgment should be granted only if the nonmoving party fails to show that a genuine issue as to a



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No. 46803-4-II


material fact exists. Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 12-13, 721 P.2d

1 (1986).

                                       II. TAKINGS CLAIM

       TTP argues that material facts exist regarding whether the City, together with Sound

Transit, took its property without just compensation at the Pacific Avenue and C Street sites. We

agree with respect to the Pacific Avenue property, and we disagree with respect to the C Street

property.

A.     Takings Background

       “The federal and Washington state constitutions provide that private property may not be

taken for public use without just compensation.” Sparks v. Douglas County, 127 Wn.2d 901,

907, 904 P.2d 738 (1995). Where the government physically appropriates private property, a

“per se” taking has occurred which requires compensation. Sparks, 127 Wn.2d at 907; Guimont

v. Clarke, 121 Wn.2d 586, 603, 854 P.2d 1 (1993). Where the government appropriates property

in fact, but with no formal exercise of the power of eminent domain, the law may recognize a

taking through inverse condemnation. Dickgieser v. State, 153 Wn.2d 530, 534-535, 105 P.3d

26 (2005). To establish inverse condemnation, a plaintiff must show “(1) a taking or damaging

(2) of private property (3) for public use (4) without just compensation being paid (5) by a

governmental entity that has not instituted formal proceedings.” Dickgieser, 153 Wn.2d at 535.

       The plaintiff in a takings case must show that a governmental activity directly or

proximately caused the plaintiff’s loss. Jackass Mt. Ranch, Inc. v. S. Columbia Basin Irrigation

Dist., 175 Wn. App. 374, 389, 305 P.3d 1108 (2013). “The government needs active proprietary

participation, meaning ‘participation without which the alleged taking or damaging would not



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No. 46803-4-II


have occurred.’” Jackass Mt. Ranch, 175 Wn. App. at 389 (quoting Halverson v. Skagit County,

139 Wn.2d 1, 13, 983 P.2d 643 (1999)).

B.     Takings Analysis

       1. Pacific Avenue Property: No Per Se Taking

       TTP argues that the City completely destroyed its access to Delin Street and thereby took

its Pacific Avenue property per se.3 We disagree. This question turns on whether, as a matter of

law, a property owner has a per se compensable interest in accessing a particular street. We

hold that so long as reasonable access remains to other public streets, the closure of one street a

property abuts is not per se a taking. Instead, a property owner has a right to reasonable access

to his property, which access must be substantially impaired for there to be a taking.

       As stated above, to establish a taking, the claimant must prove a property right. Granite

Beach Holdings, LLC v. Dep’t of Nat. Res., 103 Wn. App. 186, 205, 11 P.3d 847 (2000). “The

right of access of an abutting property owner to a public right-of-way is a property right which if

taken or damaged for a public use requires compensation under article I, section 16 of the

Washington State Constitution.” Keiffer v. King County, 89 Wn.2d 369, 372, 572 P.2d 408

(1977). Similarly, the owner of a private easement abutting a public highway has a property

right subject to a takings analysis. Williams Place, LLC v. State ex rel. Dep’t of Transp., 187

Wn. App. 67, 87, 348 P.3d 797, review denied, 184 Wn.2d 1005 (2015).

       If there is a property right, the first step in the analysis of whether compensation must be

paid in a particular case is to determine whether the government action in question has actually



3
 TTP argues that a per se taking occurred only at the Pacific Avenue property, not at the C Street
property.


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No. 46803-4-II


interfered with the right of access to the property. Keiffer, 89 Wn.2d at 372. If the right of

access has been impaired, the second step in the analysis is the degree of damage; this is a

question of fact. Keiffer, 89 Wn.2d at 373-74.

       To satisfy the first step, a party must show that his or her right of access to the property

was either eliminated or substantially impaired. Keiffer, 89 Wn.2d at 373. That is, the party

must show that his or her reasonable means of access to the property was obstructed. Union

Elevator & Warehouse Co. v. Dep’t of Transp., 96 Wn. App. 288, 296, 980 P.2d 779 (1999).

       [A] landowner whose land becomes landlocked or whose access is substantially
       impaired as a result of a street vacation is said to sustain special injury. If, however,
       the landowner still retains an alternate mode of egress from or ingress to his land,
       even if less convenient, generally speaking he is not deemed specially damaged.
       He has no legal right to prevent the vacation because no legal right of his has been
       invaded.

Hoskins v. City of Kirkland, 7 Wn. App. 957, 960-61, 503 P.2d 1117 (1972) (citations omitted).

Thus, a landowner is not entitled to compensation in the case of the vacation of a street where

access is preserved over other streets or ways; an added inconvenience is not a damage or a

taking. Freeman v. City of Centralia, 67 Wash. 142, 145, 120 P. 886 (1912); see also RCW

47.52.041 (preventing takings liability for the “closing of such streets, roads or highways as long

as access still exists or is provided to such property abutting upon the closed streets, roads or

highways. Circuity of travel shall not be a compensable item of damage.”). Where there is no

taking, the landowner has no standing to sue. Hoskins, 7 Wn. App. at 961.




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No. 46803-4-II


       Here, TTP abutted Delin Street due to its easement over the City’s property.4 See

Williams Place, 187 Wn. App. at 87. But more than merely abutting a street is required to create

takings liability when the street is closed. TTP argues that the closure of any street or street

segment a property owner directly abuts is a per se taking. This is not the law. “[O]wners of

property abutting on a street or alley have no vested right in such street or alley except to the

extent that their access may not be unreasonably restricted or substantially affected.” Taft v.

Wash. Mut. Sav. Bank, 127 Wash. 503, 509-10, 221 P. 604 (1923). Without a denial of access to

the property, even abutting owners do not have a property right in a particular street. See

Keiffer, 89 Wn.2d at 372-73. The right of an abutting property owner is the right of access to the

property, not access to the particular street. See Keiffer, 89 Wn.2d at 372 (“Not all impairments

of access to property are compensable.”); Hoskins, 7 Wn. App. at 960-61.

       TTP cites Town of Selah v. Waldbauer for the proposition that removing access to a

property from a particular street is categorically a per se taking. Br. of Appellant at 21 (citing 11

Wn. App. 749, 756, 525 P.2d 262 (1974)). But Waldbauer is not a takings case. In that case, a

town petitioned to rezone an area such that the owner of a corner lot would no longer have access

to one of the two streets it abutted. 11 Wn. App. at 750-51. Division Three of this court held

that while eminent domain may have been an appropriate way to remove the corner lot owner’s

access to a particular road, rezoning was not a permissible way to accomplish that goal. 11 Wn.


4
 The City argues that TTP overburdened this easement by using it for parking rather than for
access, and by using more of the 2610 Pacific Avenue property than the easement allowed. It
argues that “loss of use” can be a consequence of such “misuse” and “trespass.” Br. of Resp’t at
12 (citing Olympic Pipe Line Co. v. Thoeny, 124 Wn. App. 381, 394, 101 P.3d 430 (2004)). But
whether the City may have had a trespass claim against TTP says nothing about whether TTP
had a valid easement.



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No. 46803-4-II


App. at 756. Thus, Waldbauer does not address whether the closure of a particular street

constitutes the taking of a property owner who abuts other streets.

       Finally, TTP argues that it is inappropriate to consider an abutting owner’s access to

other roads when a particular abutting street has been removed. TTP points to Washington

Pattern Jury Instruction 151.04, which instructs that there is no taking if a property owner must

simply use a more circuitous route, but which instructs courts not to use the instruction “when

the issue is access from or to an existing abutting roadway.”5 Br. of Appellant at 23 (citing 6A

WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 151.04, at 112

(2012) (WPI). TTP argues that this instruction demonstrates that considering the accessibility of

other roads is inappropriate in the case of an abutting owner. But WPI 151.01, which addresses

abutting property owners’ rights to roadways, reads in relevant part:

               The right of access means that an owner is entitled to reasonable ingress and
       egress to the property. However, an owner is not necessarily entitled to access at
       all points along the boundary between the property and the existing public way.
               Unless such rights of access are substantially impaired, such owner has
       suffered no compensable damage in regard to these rights.

6A WPI 151.01, at 107. Thus, the pattern instructions contemplate a substantial impairment

analysis even for abutting property access.

       TTP does not establish a per se taking at the Pacific Avenue property merely by showing

that its easement abutted Delin Street; it must show that the impairment of its access to its

property was substantial. Accordingly, we turn to examining whether TTP raised a material




5
 We address TTP’s argument, notwithstanding that pattern jury instructions are not binding legal
authority.


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No. 46803-4-II


issue of fact that its access to its Pacific Avenue property, as well as its C Street property, was

substantially impaired.

       2. Substantial Impairment Analysis

       TTP argues that even if there was no per se taking, there was substantial impairment to its

right of access to the Pacific Avenue property, and therefore a compensable taking through

inverse condemnation. It also argues that its uses of the C Street property were substantially

impaired. We hold that there is a genuine issue of material fact about whether access to the

Pacific Avenue property, but not the C Street property, was substantially impaired.

       Property owners abutting a public road do not have unlimited access rights. Galvis v.

Dep’t of Transp., 140 Wn. App. 693, 703, 167 P.3d 584 (2007). Compensation is properly

denied in those cases where the impairment of access is not substantial. Keiffer, 89 Wn.2d at

372. Moreover, summary judgment can be an appropriate avenue for disposing of takings claims

based on a lack of substantial impairment. See Hoskins, 7 Wn. App. at 964-65.

       i. Pacific Avenue

       Here, it is undisputed that TTP retains ingress and egress access on Pacific Avenue and

27th Street. Nevertheless, there is a genuine issue of material fact regarding whether the removal

of Delin Street substantially impaired TTP’s access to its Pacific Avenue property. TTP

provided declarations showing that the removal of Delin Street “has had a significant negative

impact on the value” of the Pacific Avenue property, and that the property was sold in 2013 “at a

much reduced price.” CP at 190. TTP’s businesses used Delin Street to exit the property “on a

regular basis.” CP at 189. These facts, taken in the light most favorable to TTP, suggest that the




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No. 46803-4-II


removal of Delin Street substantially impaired TTP’s access to the Pacific Avenue property.

Accordingly, summary judgment dismissal of this claim is inappropriate.

          ii. C Street Property

          TTP argues that the utility bungalow built near the C Street property “substantially

limited the potential uses” of that property, and that there was a question of fact for the jury

about the degree of damage. Br. of Appellant at 25. We disagree.

          TTP relies on Fry v. O’Leary, 141 Wash. 465, 252 P. 111 (1927), for the proposition that

it had a property right in the pre-bungalow width of the alley. Fry involved a city ordinance

vacating 13 feet of the width of the road that provided access to the plaintiffs’ property. 141

Wash. at 466-67. In that case, our Supreme Court reasoned that an abutting property owner is

entitled to recover in damages “for any substantial or material diminution” of the right of access,

air, light, and other benefits from the width of the street. Fry, 141 Wash. at 470 (emphasis

added).

          TTP also cites Young v. Nichols, 152 Wash. 306, 278 P. 159 (1929). But Young, like Fry,

holds that property owners have an action for damages if a government vacates “a substantial

part of the street.” Young, 152 Wash. at 308 (emphasis added). Here, the utility bungalow

encroaches just over one foot into a 20-foot-wide alleyway, and TTP fails to show how this

encroachment (rather than the placement of the bungalow beyond the alleyway in the City’s

right-of-way) substantially or materially diminished its right of access to the C Street property.

          TTP fails to raise a genuine issue of material fact about the substantial impairment of its

access to the C Street property. The facts show that the encroachment is minimal—just over a

foot—and that the remaining width of the alley is more than the City’s minimum required alley



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No. 46803-4-II


width. While TTP has a right to access its property, it does not show that it had a property right

to “swing wide” over the City’s property beyond the alley to enter the alley. Therefore, TTP has

failed to show that the encroachment of the bungalow into the alleyway substantially impaired its

access to the property.

       Thus, TTP’s argument that a jury must determine the amount of damage is unavailing.

“Keiffer does not require that a jury determine whether the degree of impairment is

compensable.” Galvis, 140 Wn. App. at 705. In this case, TTP fails to raise a genuine issue of

material fact to defeat summary judgment on the question whether there was a compensable

taking. A jury need not decide damages. The superior court properly granted summary

judgment on this issue.

C.     Question of Fact about Taking by City

       The City argues that, even if there was a compensable taking, the City was not the liable

actor. We disagree because there is a question of material fact about whether the City

participated in the taking by allowing Sound Transit to use its rights-of-way.

       Both parties cite Phillips v. King County, 136 Wn.2d 946, 968 P.2d 871 (1998) to support

their arguments about whether the City is liable. In Phillips, landowners sued King County for a

taking after a neighboring developer obtained the County’s approval to construct drainage

facilities. 136 Wn.2d at 950-51, 954. The drainage facilities, which included a “sheet flow

spreader” built on a King County right-of-way, caused water to flood the plaintiff landowners’

property. 136 Wn.2d at 951-54. Our Supreme Court granted review of a summary judgment in

the County’s favor. 136 Wn.2d at 954-55.




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No. 46803-4-II


       Our Supreme Court held that, as a matter of law, a government entity’s mere approval of

development is insufficient to create takings liability. 136 Wn.2d at 962 (“[C]ounty action in

regulating development and enforcing drainage restrictions should not give rise to liability

against the county for the negligence of a developer.”). The court expressly “reject[ed] the

contention that a municipality will be liable for a developer’s design which causes damages to

neighbors when the county’s only actions are in approval and permitting.” 136 Wn.2d at 963.

       But our Supreme Court held that there was a question of fact about whether the County

was liable for acting as a direct participant in allowing a third party to use the County’s land.

136 Wn.2d at 969. The County had permitted the developer to install water-spreading devices

on a right-of-way owned by the County. 136 Wn.2d at 967. The court allowed the plaintiffs to

pursue the County on a theory that the water spreaders caused flooding. 136 Wn.2d at 969. “By

making public property available for the building of the drainage facilities, the County may share

in any potential liability, along with the developer, for damage to the Phillips’ property caused

by the dispersal of water from the spreaders.” Phillips, 136 Wn.2d at 969.

       Thus, Phillips holds that a governmental entity is liable only for acts attributable to it,

which do not include permitting and approval activities or assuming ownership of a system the

design of which is subject to a takings challenge. Halverson, 139 Wn.2d at 8-9 (citing Phillips,

136 Wn.2d at 965-66). But one act that may create government liability is allowing a third party

to use public land. Phillips, 136 Wn.2d at 969. When this occurs, there is a question of fact

about whether the government, “as a property owner, should be responsible for a ‘proprietary

action’ respecting the County’s management of its public land.” Halverson, 139 Wn.2d at 9

(quoting Phillips, 136 Wn.2d at 967).



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No. 46803-4-II


       Here, although it is undisputed that Sound Transit and its contractors did all of the work

that TTP challenges, there is at least a question of fact about whether the City acted as a direct

participant in these actions by allowing Sound Transit to use its rights-of-way. See Phillips, 136

Wn.2d at 969. The RUA contemplates that Sound Transit would use City rights-of-way,

including Delin Street, to accomplish the D to M project. The RUA granted Sound Transit the

right to use these rights-of-way because this use would be in the best interests of the City and the

public. Thus, there is a question of fact here about whether the City acted in a proprietary, rather

than merely a regulatory, capacity.

       In summary, we reverse the summary judgment dismissal of TTP’s takings claim

regarding the Pacific Avenue property because there is a genuine issue of material fact about

whether TTP’s access to that property was substantially impaired and whether the City acted in a

proprietary or regulatory capacity. We affirm the summary judgment dismissal of TTP’s takings

claim at the C Street property because no taking occurred regarding that property. We remand to

the superior court for further proceedings consistent with this opinion.



                                                                      Worswick, J.
 We concur:



Bjorgen, A.C.J.




Sutton, L.




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