Engley Diversified Inc. v. City of Port Orchard, et al
Filing
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ORDER by Judge Benjamin H Settle dismissing as moot 39 Motion for Default ; dismissing as moot 10 Motion for Discovery; denying 15 Motion for Partial Summary Judgment; denying 18 Motion for Partial Summary Judgment; dismissing as moot 22 Motion for Order; dismissing as moot 25 Motion for Summary Judgment. Case is REMANDED to the City Council for consideration. (TG)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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ENGLEY DIVERSIFIED, INC., et al.,
Plaintiffs,
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CASE NO. C11-05324BHS
v.
CITY OF PORT ORCHARD, et al.,
Defendants.
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ORDER DENYING
PLAINTIFF’S MOTION,
DENYING DEFENDANT’S
MOTION AND REMANDING
TO CITY COUNCIL FOR FINAL
DECISION ON THE MERITS
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This matter comes before the Court on the cross motions of Plantiff Engley
Diversified, Inc., (“EDI”) (Dkt. 15) and of Defendant City of Port Orchard (“the City”)
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(Dkt. 18) for partial summary judgment. The Court has reviewed the briefs filed in
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support of and in opposition to the motions and the remainder of the file and hereby
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denies both motions and remands this matter to the Port Orchard City Council (“the City
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Council”) for a decision on the merits.
I. PROCEDURAL AND FACTUAL BACKGROUND
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On May 20, 2011, EDI filed a motion for partial summary judgment. Dkt. 15. On
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May 26, 2011, the City filed a cross motion for partial summary judgment. Dkt. 18. Both
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parties seek summary judgment regarding the exhaustion of administrative remedies, a
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condition precedent to EDI’s Land Use Petition Act (“LUPA”) action. Dkts. 15 & 18.
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This matter arises out of EDI’s appeal from the City’s denial of EDI’s construction
permit applications. Dkt. 2 at 5. EDI pursued an appeal to the City’s Hearing Examiner
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ORDER - 1
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(“the Hearing Examiner”) which affirmed the City’s denial on November 9, 2010. Dkt. 16
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at 6. On November 15, 2010, EDI then filed a timely motion for reconsideration (Dkt. 16
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at 24), pursuant to Port Orchard Municipal Code (“POMC”) 2.76.130, which states:
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2.76.130 Reconsideration.
(1) Request for Reconsideration. The examiner has discretion
whether to consider a request for reconsideration. A request for
reconsideration must be in writing and filed by a party or aggrieved person
within seven working days of the examiner’s decision. The request must
include: the grounds for reconsideration, including specific reference to the
decision and each claimed error therein whether error of law or fact, and
any discovery of new evidence which, upon reasonable diligence, could not
have been discovered by a party prior to the close of the hearing on the
matter. Failure to allege error is grounds for summary denial of the request.
(2) Effect of Request. The filing of a request for reconsideration
shall stay the running of the appeal period until the examiner issues a
decision on the request. Upon issuance of a decision on a request for
reconsideration, the time for filing an appeal will begin. The examiner will
review the request in light of the official record and his or her decision,
taking into account the grounds for the request. The examiner may deny the
request; may set a hearing in order to supplement the official record and
issue a revised decision following that hearing; or may revise the decision
without a hearing. If the request is denied without further hearing or
submission of materials by other parties, the denial must be issued in
writing within five working days of the date of the request. The examiner
has the authority to take any action consistent with the powers granted
herein, in order to issue a decision on a request for reconsideration. Action
taken by the examiner in response to a request for reconsideration, other
than a denial, shall be in writing, and shall be issued within 21 calendar
days of the date of the request.
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Dkt. 21 at 6 (emphasis added). On December 6, 2010, the Hearing Examiner denied
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EDI’s motion for reconsideration. Dkt. 16 at 27. On December 16, 2011, EDI filed an
appeal of the Hearing Examiner’s decision to the City Council. Dkt. 20 at 4. On March
22, 2011, the City Council dismissed the appeal as untimely. Dkt. 16 at 55-58; see also,
POMC 16.06.072(2) (fourteen-day rule).
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II. DISCUSSION
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EDI moves the Court to find that the City Council erred when it found EDI’s
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appeal untimely and to find that EDI exhausted its administrative remedies. Dkt. 15 at
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11. The City argues that the Court should dismiss this case because the City Council’s
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ORDER - 2
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decision, finding EDI’s appeal untimely, renders EDI without standing to bring the
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appeal. Dkt. 18 at 2-4. The dispute centers on the interpretation of POMC 2.76.130(2),
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the effect of a request for reconsideration on the running of the appeal period; each party
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maintains a different interpretation of the provision. POMC 2.76.130(2); Dkts. 15 at 7 &
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18 at 4.
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A.
Parties’ Dispute
EDI maintains that the City Council’s interpretation of POMC 2.76.130(2) was
contrary to the plain language of the provision.1 Dkts. 15 at 8 & 35 at 5. Specifically,
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EDI argues that the time for filing an appeal begins “upon issuance of a decision on a
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request for reconsideration.” POMC 2.76.130(2); Dkts. 15 at 7 & Dkt. 16 at 50.
Therefore, EDI contends that by filing its appeal on December 16, 2010, nine days after
the Hearing Examiner’s issuance of its decision on EDI’s motion for reconsideration,
EDI’s appeal to the City Council was timely. Dkts. 15 at 8 & 16 at 49.
In contrast, the City argues that the time for filing an appeal begins on the date of
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the Hearing Examiner’s initial decision (Dkts. 16 at 45 & 18 at 3) and that the stay
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contemplated in POMC 2.76.130(2) “is like pressing pause on a movie. Once the stay is
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lifted the time to file an appeal continues to run from that point as if the stay of
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proceedings never occurred.” Dkt. 16 at 46. According to the City’s interpretation, any
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of the time passing within the seven-day period allowed for filing a motion for
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reconsideration is subtracted from the fourteen-day total time allowed for appeal to the
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City Council. Dkt. 18 at 4.
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EDI also appears to argue that by stipulating to the hearing date and agreeing to “waive
any objection to a hearing being set on or before February 22, 2011,” the City waived any
objection that the appeal was untimely. Dkt. 15 at 6. While the Court is persuaded that this may
support remand, the parties have not fully briefed this issue, and it is not necessary to the Court’s
decision.
ORDER - 3
The City Council, the final authority for land use decisions, agreed with the City’s
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interpretation of the municipal code, and it found that EDI failed to exhaust
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administrative remedies by filing an untimely appeal. Dkt. 16 at 55-56. The City Council
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reasoned the rules of statutory interpretation supported its decision. Dkt. 56-58.
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B.
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Statutory Interpretation
Federal courts must be cautious in determining the meaning of a municipal
ordinance where the state supreme court has not provided a controlling interpretation of
its meaning. Cf. Coalition for Economic Equity v. Wilson, 110 F.3d 1431, 1437 (9th Cir.
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1997) (citing Arizonans for Official English v. Arizona, 520 U.S. 43, 75-79 (1997)). “In
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regard to statutory construction, it is well settled that courts should accord great
deference to the interpretation given the statute by the officers or agency charged with its
administration.” Udall v. Tallman, 380 U.S. 1 at 16 (1965). Accordingly, a practical
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interpretation by officials charged with administration of ambiguous statute “will not be
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lightly disturbed.” Brewster v. Gage, 280 U.S. 327, 336 (1930). However, such
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deference is constrained by a court’s obligation to honor the clear meaning of a statute,
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as revealed by its language, purpose and history. Southeastern Community College v.
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Davis, 442 U.S. 397, 411 (1979).
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1.
Plain Language
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According to the Supreme Court, “[t]he constructional problem is resolved by the
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. . . principle . . . that a word is known by the company it keeps (the doctrine of noscitur
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a sociis).” Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995). The Ninth Circuit
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similarly recognizes “that words are to be judged by their context and that words in a
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series are to be understood by neighboring words in the series.” United States v.
Carpenter, 933 F.2d 748, 750-51 (9th Cir. 1991). Thus, a court’s inquiry begins and
ends with the statutory text, if the text is unambiguous. Satterfield v. Simon & Schuster,
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Inc., 569 F.3d 946, 951 (9th Cir. 2009); State v. Delgado, 148 Wn.2d 723, 727 (2003)
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ORDER - 4
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(stating that where the meaning of the statute is unambiguous, the goal of one tasked
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with its interpretation is to give effect to the plain meaning).
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Here, when the City Council interpreted POMC 2.76.130(2), it found that “the
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time period for an appeal ceas[es] during the period of time that a motion for
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reconsideration is pending, i.e. a stay, and then continu[es] to run once the motion has
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been ruled upon.” Dkt. 16 at 57 (emphasis added). According to the City Council, the
appeal period “is to resume as if the stay had not occurred.” Id. (emphasis added).
This interpretation, however, is contrary to a plain reading of the provision’s
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unambiguous language. The Court finds nothing ambiguous about POMC 2.76.130(2).
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The plain language of the code provides, in pertinent part, as follows:
The filing of a request for reconsideration shall stay the running of the
appeal period until the examiner issues a decision on the request. Upon
issuance of a decision on a request for reconsideration, the time for filing
an appeal will begin.
POMC 2.76.130(2) (emphasis added). It does not say that the effect of filing a motion for
reconsideration puts a pin in the time for filing an appeal which will continue or resume
after the decision is issued. POMC 2.76.130(2). In short, begin is not synonymous with
resume or continue.2 Plain language does not require construction. State v. Wilson, 125
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Wn.2d 212, 217 (1994). Therefore, the Court concludes that the plain meaning of the
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term “begin” indicates that the effect of a motion for reconsideration is a suspension of
the start of the appeal period until the motion is decided.
Additionally, statutes should not be interpreted so as to render any portion
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meaningless, superfluous or questionable. Addleman v. Board of Prison Terms and
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Paroles, 107 Wn.2d 503, 509 (1986) (citing Avlonitis v. Seattle Dist. Court, 97 Wn.2d
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131, 138 (1982) disagreed with on other grounds by State, Dept. of Ecology v. Campbell
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The Court notes that other than it’s own reading of the code, the City Council cites no
authority for the proposition that the plain meaning of the term “begin” is ambiguous or may be
construed to mean continue or resume.
ORDER - 5
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& Gwinn, L.L.C., 146 Wn.2d 1, 9 (2002). Thus, the Court is persuaded by EDI’s
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argument that the “second sentence of POMC 2.76.130(2) clarifies” the intended
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meaning of the first sentence. Dkt. 15 at 10. To disregard the word ‘begin’ renders the
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entire sentence meaningless, and any other interpretation of the sentence renders it
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superfluous.
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2.
Absurd Results
Statutes are to be interpreted so as to preclude absurd results whenever possible.
United States v. Wilson, 503 U.S. 329, 334 (1992). So, even if the Court found the City
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Council’s interpretation facially persuasive, the Court must fully consider the
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implications of this interpretation. Here, the Court concludes that the City Council’s
interpretation creates an untenable choice between a right to file a motion for
reconsideration and the right to appeal. For example, according to the City Council’s
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interpretation, a party who chooses to exercise its right to move for reconsideration must
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forgo its right to the full fourteen-day recourse available to others who directly appeal
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the Hearing Examiner’s decision. POMC 2.76.110(3)(a). Under the City Council’s
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interpretation, if a motion for reconsideration is filed on the last day permitted, as in the
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instant case, the time normally allotted for taking an appeal would be cut in half. By
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demanding such a price for filing a motion for reconsideration, the City Council’s
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interpretation leads to this and perhaps other absurd results. This Court cannot read such
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a result into a reasonable appeals process.
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3.
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Under POMC 2.76.130(2) the time to file an appeal began on December 6, 2010.
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EDI’s appeal
EDI then had fourteen days, until December 20, 2010, to file its appeal. EDI filed its
appeal with the City Council on December 16, 2010. Thus, the Court finds EDI’s appeal
timely and because EDI has not exhausted its administrative remedies, the Court
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remands the appeal to the City Council for consideration on the merits.
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ORDER - 6
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C.
Pending Motions
Since the Court remands the matter to the City Council for a final decision, the
Court denies, without prejudice, all pending motions as moot.
III. ORDER
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Therefore, it is hereby ORDERED that
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(1)
EDI’s motion for partial summary judgment (Dkt. 15) is DENIED;
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(2)
The City’s motion for partial summary judgment (Dkt. 18) is DENIED;
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(3)
This matter is REMANDED to the City Council for consideration on its
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merits; and
(4)
All other pending motions (Dkts. 10, 22, 25, & 39) are DISMISSED
without prejudice as moot.
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DATED this 7th day of July, 2011.
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A
BENJAMIN H. SETTLE
United States District Judge
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