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      IN CLEMCS OFFICE     X
                                                                   This opinion was
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                                                                    filed for record
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                                                                 Susan L. Carlson
        CHIEF JUSTICE
                                                                Supreme Court Clerk




      IN THE SUPREME COURT OF THE STATE OF WASHINGTON




  THE CHURCH OF THE DIVINE
  EARTH,                                        No. 96613-3


                            Petitioner,

          V.                                    En Banc


  CITY OF TACOMA,

                            Respondent.
                                                Filed        iEP f 9 ww

          JOHNSON,J.—This case concerns whether the city of Tacoma(City) can be

  held liable for damages for imposing an unlawful condition on a building permit. In

  an appeal brought under the Land Use Petition Act(LUPA), chapter 36.70C ROW,

  the superior court ruled that the City acted unlawfully when it placed a condition on

  the Church ofthe Divine Earth's(Church) building permit, requiring an

  uncompensated-for dedication of land for right-of-way improvements. However,the

  court denied the Church's action for damages under RCW 64.40.020, and the Court

  of Appeals affirmed. We reverse and remand for a new trial.
The Church ofthe Divine Earth v. City ofTacoma, No. 96613-3


                                        FACTS


      On September 20, 2013,the Church submitted an application to the City to

build a parsonage on property it owned. A single-family residence had previously

been located on the property, but it had been demolished in 2012. City staff reviewed

the pennit application and placed a number of conditions on it, including, at issue

here, a requirement that the Church dedicate a 30-foot-wide strip of land for right-of-

way improvements to a street abutting the property. While the existing street was

generally 60 feet wide in other areas, it was 30 feet wide next to the Church's

property. This lack of uniformity had existed for around 100 years.

      The Church challenged the permit conditions, and the City eventually removed

most ofthem but kept the requirement for a dedication. The Church appealed the

decision to the City's hearing examiner, and the hearing examiner granted summary

judgment in favor ofthe City.

      The Church filed a timely appeal under LUPA,in which it challenged the

hearing examiner's decision and also sought damages under RCW 64.40.020. In

addressing the propriety ofthe dedication, the court confined its review to the

administrative record that had been before the hearing examiner and acknowledged

that, in that record, the stated purpose by the City for imposing the dedication

requirement was to create a uniform street. The court held that this reason was
The Church ofthe Divine Earth v. City ofTacoma, No. 96613-3


insufficient to justify the requirement and reversed the hearing examiner, invalidating

the condition.


       The case then proceeded to trial on the issue of damages. The court issued an

order prohibiting the City from entering evidence to show the dedication was

imposed for any reason other than unifonnity. However, during trial. City officials

testified that the dedication was intended to address a variety of issues, including to

alleviate impacts to traffic, visibility, parking, and pedestrian safety, as well as to

bring the street into compliance with city codes and industiy best practices. The trial

court apparently considered the evidence and found that the City imposed the

dedication to address increased vehicular and pedestrian traffic and related safety

impacts, and to ensure adequate visibility. It then concluded (a)"[t]he City

reasonably believed that the development conditions it attached to the permit had a

nexus to the project and were proportional" and (b)the City "did not know and

should not have reasonably known that its requirement for a dedication of right of

way would be considered violative ofNollan/Dolan^^^f Clerk's Papers(CP)at 2408.

The court denied the Church's request for damages, and the Church appealed.

       The Court of Appeals affirmed the trial court, holding that "[bjecause the City

reasonably believed that it satisfied the requirements of NollanlDolan, it did not



      'Nollan V. Cal. Coastal Comm'n,483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677
(1987); Dolan v. City ofTigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994).
The Church ofthe Divine Earth v. City ofTacoma, No. 96613-3


know and should not have known that its action was unlawful." Church ofDivine

Earth v. City ofTacoma, 5 Wn. App. 2d 471, 494,426 P.3d 268 (2018). The Court of

Appeals also awarded attorney fees to the City. The Church petitioned this court, and

we granted limited review.^ Church ofDivine Earth v. City ofTacoma, 192 Wn.2d

1022,435P.3d285 (2019).

                                          ISSUE


   1. Whether the City knew or should reasonably have known its requirement for
       a dedication of land was unlawful.

                                       ANALYSIS


       We should first settle what this case is not about. This is not a case challenging

the constitutionality of a land use decision; the propriety ofthe permit condition was

already resolved by the lower court and is not before us on appeal. And because the

superior court invalidated the permit condition, this is not a claim for just

compensation for a taking. Instead, what we have before us is a claim for damages

under RCW 64.40.020 for an attempted exaction ofland through an unlawful permit

condition.


      RCW 64.40.020(1) allows a property owner who files an application for a

permit to bring an action for damages

      to obtain relief from acts of an agency which are arbitrary, capricious,
      unlawful, or exceed lawful authority, or relief from a failure to act

      ^ Amicus briefs in support of the Church were filed by Pacific Legal Foundation and the
Building Industry Association of Washington.
The Church ofthe Divine Earth v. City ofTacoma, No. 96613-3


      within time limits established by law: PROVIDED,That the action is
      unlawful or in excess oflawful authority only if the final decision ofthe
      agency was made with knowledge of its unlawfulness or that it was in
      excess of lawful authority, or it should reasonably have been known to
      have been unlawful or in excess of lawful authority.

This statute does overlap to some degree with LUPA insofar as, to obtain damages

under RCW 64.40.020, the land use decision must, necessarily, be invalid. But not

every successful LUPA appeal will justify damages, as is expressly acknowledged in

RCW 36.700.130(2)(stating that "[a] grant of relief by itself may not be deemed to

establish liability for monetary damages"). To establish liability for such damages

under RCW 64.40.020, a plaintiff must meet a higher burden than is required in

LUPA,establishing actual or constructive knowledge, or that the government entity

acted in an arbitrary or capricious manner.

      Our review here is limited to the question of whether the Church may obtain

damages for the City's unlawful action. As the statute indicates, the City incurs

liability for an unlawful action "only if thefinal decision ofthe agency was made

with knowledge of its unlawfulness .. . or it should reasonably have been known to

have been unlawful." RCW 64.40.020(1)(emphasis added). The City argued, and the

trial court held, that the final decision was that ofthe hearing examiner. Therefore,

the issue in this case is whether the City knew or should reasonably have known the

hearing examiner's decision to allow the permit condition was unlawful. The trial

court appears to have based its findings of fact and conclusions oflaw on arguably
The Church ofthe Divine Earth v. City ofTacoma, No. 96613-3


improper, irrelevant evidence, and the Court of Appeals, in turn, applied the wrong

standard in its review.


       Whether the City should reasonably have known the final decision was

unlawful is an issue involving related questions of both law and fact. Isla Verde Int'l

Holdings, Ltd. v. City ofCamas, 147 Wn. App. 454, 467, 196 P.3d 719(2008). It

requires an examination ofthe law, which the City is presumed to have known,see,

e.g.. State ex rel. Dungan v. Superior Court, 46 Wn.2d 219, 222, 279 P.2d 918

(1955), and the material facts underlying the final decision. The statute creates an

objective standard, asking whether a reasonable person looking at the facts utilized in

the final decision would be expected to know the decision violated established law.

See, e.g.. In re Forfeiture ofOne 1970 Chevrolet Chevelle, 166 Wn.2d 834, 841, 215

P.3d 166(2009)(holding that while "actual knowledge" is a subjective standard,

having "reason to know" is an objective standard); Cloud v. Summers,98 Wn. App.

724, 731,991 P.2d 1169(1999)(recognizing the objective nature of whether a

plaintiff should have known of an injury).

       A permit condition for an uncompensated dedication ofland is unlawful where

it fails to fulfill the requirements laid out in two formative cases on unconstitutional

conditions,         v. California Coastal Commission,483 U.S. 825, 107 S. Ct. 3141,

97 L. Ed. 2d 677(1987), andZ)o/a« v. City ofTigard, 512 U.S. 374, 114 S. Ct. 2309,

129 L. Ed. 2d 304 (1994). Taken together, the Nollan and Dolan cases create a
The Church ofthe Divine Earth v. City ofTacoma, No. 96613-3


framework for analyzing the constitutionality of a permit condition involving an

uncompensated land dedication. First, the government must show the development

will create or exacerbate an identified public problem. Second, the government must

show the proposed condition will tend to solve or alleviate the public problem.

Finally, the government must show that the condition is roughly proportional to the

development's anticipated impact. In fulfilling these requirements, the government

must, to some degree, quantify its findings, and cannot rely on speculation regarding

the impacts or mitigation ofthem.

      The City provided little documentation to the hearing examiner to justify its

requirement for a dedication. The record contained minutes from a September 25,

2013 review panel where the Church's permit was discussed, and a declaration from

the director of planning and development services, Peter Huffrnan. The review panel

minutes state that the Church was being required to dedicate the land "to provide

consistent right-of-way widths" along the street, and 30 feet was being required "to

stay consistent and provide adequate street and sidewalk area." CP at 598. Huffrnan's

declaration summarized the City's reason for the dedication as "It is important to the

City that the [right of way] in all City streets be uniform." CP at 127. Thus, the City's

stated reason for the dedication was to create a consistent, uniform street.

      The hearing examiner's ruling was the "final decision," and the City provided

the hearing examiner only with documentation evidencing consistency and
The Church ofthe Divine Earth v. City ofTacoma, No. 96613-3


uniformity as justifications for the dedication requirement. Therefore, under RCW

64.40.020(1)the question for the superior court was whether the Church proved the

City knew or should reasonably have known that its goal for a consistent, uniform

street did notjustify the permit condition under Nollan and Dolan. As noted above,

despite an order from the trial court properly limiting evidence to the reasoning

presented to the hearing examiner for the final decision, the court permitted City

officials to testify extensively regarding other reasons the City imposed the condition.

The City asserted that the dedication was imposed to address increased vehicular and

pedestrian traffic from the development, and concerns about visibility and

obstructions to pedestrians, as well as to meet general standards for roads. None of

these reasons had been presented to the hearing examiner. Nevertheless, the court

apparently considered this additional reasoning and, in its findings of fact, asserted

that the Church's parsonage would both increase and impair safety for vehicular and

pedestrian traffic and that the dedication was necessary to ensure adequate visibility.

      The trial court erred in permitting testimony ofreasons for the dedication that

had not informed the City's final decision to impose the permit condition. Since these

additional reasons did not inform the City's final decision, the City could not use

them as justification for having imposed the condition. Evidence ofthese other

justifications was not relevant to the issue before the court, which was whether the

Church proved the City knew or should reasonably have known the hearing
The Church ofthe Divine Earth v. City ofTacoma, No. 96613-3


examiner's decision did not satisfy a Nollan and Dolan analysis. The court's findings

of fact leave no doubt that the additional evidence led the court to conclude damages

were not warranted. Because the court's findings were based on evidence not

considered by the hearing examiner, they lack the necessary support and cannot

justify the court's conclusions oflaw. Hegwine v. Longview Fibre Co., 162 Wn.2d

340, 352-53, 172 P.3d 688 (2007)(holding that findings offact must be supported by

substantial evidence and must, in turn,justify a court's conclusions of law).

      The Court of Appeals then erred on review by applying the wrong legal

standard under the statute. The court held that because the City "reasonably believed"

its requirement for a dedication was lawful,"it did not know and should not have

known that its action was unlawful." Church ofDivine Earth, 5 Wn. App. 2d at 494.

But whether the City believed in the lawfulness of its actions is a subjective question

and conflicts with the statutory standard ofRCW 64.40.020. As discussed above, the

statute requires an objective standard, asking whether the City's final decision

"should reasonably have been known to have been unlawful." Thus, damages are not

available ifreasonable minds with the necessaiy knowledge and expertise could have

concluded that the City's decision was lawful. The City's subjective beliefthat the

dedication was lawful does not determine what it objectively should reasonably have

loiown. The Court of Appeals erred in reasoning otherwise.
The Church ofthe Divine Earth v. City ofTacoma, No. 96613-3


                                    CONCLUSION


      We reverse the Court of Appeals and remand for a new trial. On remand, the

trial court should confine its review addressing the propriety ofthe dedication to

evidence relevant to the hearing examiner's final decision. In deciding whether

damages are justified, the court must determine whether the Church proved the City

loiew or should reasonably have known its permit condition for a dedication ofland

was unlawful.




WE CONCUR;




                                                        icy\




                                           10
Church ofthe Divine Earth v. City ofTacoma, No. 96613-3
Yu, J. (dissenting)




                                      No. 96613-3


      YU,J. (dissenting) — In this case, we granted review as to whether a city

should be held liable for damages in accordance with RCW 64.40.020 for initially

imposing a condition on a building permit that was later deemed unlawful in an

appeal brought pursuant to the Land Use Petition Act(LUPA), chapter 36.70C

RCW. Because the majority omits key facts, misinterprets the trial court's

preliminary pretrial evidentiary ruling, and misreads the Court of Appeals opinion

regarding the standard for imposing damages pursuant to RCW 64.40.020, it

incorrectly declines to address the sole issue presented, and instead reverses and

remands for a new trial that is entirely unnecessary.

      I would hold the trial court did not err when it considered additional


evidence in the damages proceeding beyond that presented in the separate LUPA

appeal to determine whether the city reasonably should have known that its actions

were unlawful. I would also hold that the Court of Appeals applied the correct
Church ofthe Divine Earth v. City ofTacoma, No. 96613-3
Yu, J. (dissenting)

legal standard for assessing liability pursuant to RCW 64.40.020, and I would

affirm its holding that the city is not liable for damages in this case. I therefore

respectfully dissent.

          FACTUAL BACKGROUND AND PROCEDURAL HISTORY


      In September 2013, the Church of the Divine Earth (Church) applied for a

building permit to construct a parsonage on a vacant lot that the Church had

recently acquired. Clerk's Papers(CP)at 782. After the initial review, the city of

Tacoma (City) imposed a number of conditions on the building permit. Id. at 106.

Viewed as a whole, these development conditions sought to create a safe and

accessible roadway for pedestrians and visitors to the parsonage. The City also

cited multiple deficiencies in the permit application that would need to be cured

before the application review could continue. Id. at 869.

       The Church did not attempt to cure the deficiencies in its application until

after litigation had begun, id. at 879-880, opposed all the City's conditions, and

submitted a waiver request. Id. at 600. Despite the incomplete application, the

City removed all of the conditions except for a 30-foot right-of-way dedication. Id.

at 13. This dedication requirement was eventually reduced from 30 feet to 8 feet.

Id. at 105. The main purpose for the right-of-way dedication was to create a

uniform street, but in context, the dedication was simply one of many conditions
Church ofthe Divine Earth v. City ofTacoma, No. 96613-3
Yu, J. (dissenting)

imposed to generally improve safety and bring the neighborhood into compliance

with the Tacoma Municipal Code.'

       The Church and the City continued to negotiate the permit application due to

some confusion over whether the building would be used solely as a parsonage or

would also be used for religious assembly.^ See id. at 108. Finally, in April 2014,

the director of planning and development services sent a letter to the Church

clarifying the status of the application and advising the Church of its right to seek

review. Id. at 155-57. Shortly thereafter, the Church appealed the City's actions to

a hearing examiner, raising primarily constitutional challenges to the City's

development conditions. Id. at 603. After determining that the constitutional

issues raised by the Church were beyond its jurisdiction, the hearing examiner

granted summary judgment in favor of the City, allowing the City to impose the

right-of-way dedication as a development condition. Id. at 9-17.

       The Church then appealed the hearing examiner's decision to the Pierce

County Superior Court pursuant to LUPA. Meanwhile, in a separate proceeding,

the Church alleged the City violated the Public Records Act(PRA), chapter 42.56



      'Other purposes included improving visibility, achieving compliance with the Americans
with Disabilities Act of 1990, 42 U.S.C. § 12101, and mitigating the potential increase in
vehicular traffic due to the construction of the parsonage on the vacant lot. See CP at 106;
Verbatim Report of Proceedings(VRP)(May 9, 2016) at 801.
       ^ Additionally, the Church had constructed a garage in advance of the permit application.
CP at 106. City attorney Jeff Capell explained that the City wanted the Church to "tie . . . up"
the loose ends with regards to the permit application. VRP (Feb. 19, 2015) at 20.
Church ofthe Divine Earth v. City ofTacoma, No. 96613-3
Yu, J. (dissenting)

RCW,and brought a claim for damages pursuant to RCW 64.40.020. See id. at

220 (Stipulated Order Bifurcating LUPA Appeal from PRA & Damages Claims).

       In the LUPA appeal, Judge Martin found that the City had failed to "carry its

burden to prove the condition complied with the requirements" of the

Nollan/Dolan analysis^ and invalidated the right-of-way dedication requirement.

Id. at 275. The case before us concerns only the separate damages claim, and as

noted below, the sole issue was whether the City knew or reasonably should have

known the dedication was unlawful. RCW 64.40.020(1).

       In the damages proceeding, a different judge. Judge Hogan,found that the

City had, in fact, conducted a NollanlDolan analysis, cited several reasons for

imposing the conditions beyond street uniformity, and concluded that the City was

not liable for damages pursuant to RCW 64.40.020. CP at 2400-09.

       The Court of Appeals affirmed, holding that there was substantial evidence

to support the trial court's findings of fact and that the trial court correctly

concluded "that the City did not know and should not have known that the

dedication requirement would later be found to violate Nollan/Dolan and.


       ^ Nollan V. Cal. Coastal Comm'n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677
(1987); Dolan v. City ofTigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994). A
Nollan/Dolan analysis must be conducted when "government demands that a landowner dedicate
an easement allowing public access to her property as a condition of obtaining a development
permit." Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 546, 125 S. Ct. 2074, 161 L. Ed. 2d 876
(2005). Such conditions will be deemed unconstitutional takings of private property without just
compensation unless the government shows that the conditions are proportionate and that they
have a nexus to the problem created by the development.
Church ofthe Divine Earth v. City ofTacoma, No. 96613-3
Yu, J. (dissenting)

therefore, was unlawful." Church ofDivine Earth v. City ofTacoma, 5 Wn. App.

2d 471, 495, 426 P.3d 268 (2018). We granted review of one issue: "whether the

City ofTacoma is liable for damages because it knew or should have known its

action was unlawful." Order, Church ofDivine Earth v. City ofTacoma, No.

96613-3 (Wash. Mar. 6, 2019).

                                      ANALYSIS


      The only claim before us is the Church's claim for damages pursuant to

RCW 64.40.020(1), which provides.

      Owners of a property interest who have filed an application for a
      permit have an action for damages to obtain relief from acts of an
      agency which are arbitrary, capricious, unlawful, or exceed lawful
      authority, or relief from a failure to act within time limits established
      by law: PROVIDED,That the action is unlawful or in excess of
      lawful authority only if the final decision of the agency was made with
      knowledge ofits unlawfulness or that it was in excess of lawful
      authority, or it should reasonably have been known to have been
      unlawful or in excess of lawful authority.

(Emphasis added.) The only issue relevant to this claim on which we granted

review is whether the City knew or should have known that the 8-foot right-of-way

dedication would ultimately be determined to be an unlawful development

condition. Yet the majority does not reach this issue and instead reverses and

remands for a new trial based on perceived errors regarding the trial court's

evidentiary rulings and the Court of Appeals' alleged reliance on an incorrect legal

standard. I would hold the trial court's evidentiary rulings in the damages
Church ofthe Divine Earth v. City ofTacoma, No. 96613-3
Yu, J. (dissenting)

proceedings were within its discretion and the Court of Appeals applied the correct

legal standard to reach the correct conclusion. I would therefore affirm.

      First, I agree with the majority that the hearing examiner's decision is the

final agency decision and thus the relevant point in time for reviewing whether the

City knew or reasonably should have known the right-of-way dedication was

unlawful. However, the majority is incorrect to hold that the trial court in the

damages proceeding relied on "arguably improper, irrelevant evidence." Majority

at 5-6.


      While the trial court in the damages proceeding did preliminarily grant a

motion to exclude evidence of reasons justifying the conditions other than street

uniformity, the court ultimately allowed extensive testimony on this topic because

it was relevant to determine whether the City's actions were arbitrary or capricious.

See Verbatim Report of Proceedings (Apr. 27, 2016) at 50. When City staff

testified as to reasons for the conditions other than uniformity, the Church's

counsel properly did not object because allowing this testimony was entirely within

the trial court's discretion. The trial court in the LUPA appeal may have been

limited to the evidence before the hearing examiner, RCW 36.70C.120(1), but the

trial court in the separate claim for damages was bound only by the ordinary Rules

of Evidence, and therefore had the discretion to consider relevant evidence as to
Church ofthe Divine Earth v. City ofTacoma, No. 96613-3
Yu, J. (dissenting)

whether the City reasonably should have known that the hearing examiner's

decision was unlawful.


       Moreover, while the hearing examiner's record was limited,"^ it in fact

contains evidence that the City had discussed reasons for the conditions other than

street uniformity. CP at 106 (citing a need to provide an adequate street sidewalk

area and compliance with the Americans with Disabilities Act and "Public Right of

Way Accessibility Guidelines"). Although the City did not expressly state that the

reason for the right-of-way dedication was safety, the reasoning for the other

conditions initially imposed was tied to safety. Taken as a whole, it is reasonable

to infer that the reason for imposing all of the conditions was to improve safety.

       Ultimately, the trial court in the damages proceeding and the Court of

Appeals both recognized that the City had performed a NollanlDolan analysis by

discussing nexus and proportionality in the City's initial review of the permit

application. Id. at 2401. This finding is supported by the testimony of City staff

members and the documents considered in the record, which were properly



         The hearing examiner's record includes (1) review panel minutes, September 25, 2013,
(2) Tacoma Planning and Development Services' letter decision, April 28, 2014,(3) affidavit of
Steven Weinman, June 9, 2014,(4) assessor's parcel summary for 6605 East B Street,(5)
corporation's division registration data for Church of the Divine Earth,(6) declaration of Peter
Huffman, July 3, 2014,(7) WSBA lawyer search showing no listing for Terry Kuehn,(8) aerial
photograph and drawing of lots in neighborhood,(9) amended declaration of Peter Huffman,
July 9, 2014,(10) Tacoma Public Works Department memorandum (Kuntz to Kammerzell),
March 5, 2014,(11)Tacoma Planning and Development Services' letter (Kuntz to Kuehn),
March 7, 2014,(12) various scenarios put forward by City for development at 6605 East B
Street. CP at 10-11.
Church ofthe Divine Earth v. City ofTacoma, No. 96613-3
Yu, J. (dissenting)

admitted in the damages proceeding at the trial court's discretion and without

objection. I would therefore not hold that the trial court in the damages proceeding

considered improper and irrelevant evidence, nor would I hold that this alleged,

unpreserved error requires a new trial.

       Second, the majority claims that the Court of Appeals applied the wrong

standard in determining whether the City was liable for damages. Majority at 9. It

did not. The Court of Appeals' opinion contains a single, arguably unartful

recitation of the standard as asking whether the City "reasonably believed that it

satisfied the requirements of NollanlDolanf which may suggest an improper,

subjective standard. Church ofDivine Earth, 5 Wn. App. 2d at 494. However,

throughout the rest of the opinion, the Court of Appeals clearly applies the proper

objective standard in its analysis and correctly states that standard multiple times.

Id. at 485 ("the City did not know and should not have known that the dedication

was unlawful"), 490 (quoting RCW 64.40.020(1)), 493 ("The relevant question is

whether the City knew or should have known that the right-of-way dedication

requirement was unlawful."), 494(quoting RCW 64.40.020(1)), 495 ("the City did

not know and should not have known that the dedication requirement would later

be found to violate NollanlDolan and, therefore, was unlawful"). A single,

arguably unartful statement in the context of an otherwise proper analysis does not

constitute reversible error.
Church ofthe Divine Earth v. City ofTacoma, No. 96613-3
Yu, J. (dissenting)

                                    CONCLUSION


      Without objection, the trial court in the damages proceeding properly

considered relevant evidence as to whether the City should have known that the

hearing examiner's decision would ultimately be held unlawful. Based on this

evidence, the court determined the City could not be held liable for damages

pursuant to RCW 64.40.020 and the Court of Appeals, applying the correct legal

standard, properly affirmed. Because the majority fails to address the sole issue on

which we granted review and reverses for an unnecessary new trial based on an

incorrect reading of the record and the Court of Appeals' decision, I respectfully

dissent.
Church ofthe Divine Earth v. City ofTacoma, No. 96613-3
Yu, J. (dissenting)




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