`
`No. 16-1194
`================================================================
`
`In The
`Supreme Court of the United States
`
`--------------------------------- ---------------------------------
`
`KINDERACE, LLC,
`
`Petitioner,
`
`v.
`
`CITY OF SAMMAMISH, WASHINGTON,
`
`Respondent.
`
`--------------------------------- ---------------------------------
`
`On Petition For Writ Of Certiorari To
`The Washington State Court Of Appeals
`
`--------------------------------- ---------------------------------
`
`BRIEF IN OPPOSITION TO
`PETITION FOR WRIT OF CERTIORARI
`
`--------------------------------- ---------------------------------
`
`
`
`MICHAEL R. KENYON
` Counsel of Record
`CHARLOTTE A. ARCHER
` KENYON DISEND, PLLC
` 11 Front Street South
` Issaquah, Washington 98027-3820
` Telephone: (425) 392-7090
` Facsimile: (425) 392-7071
` Mike@KenyonDisend.com
` Charlotte@KenyonDisend.com
`
`Counsel for Respondent
`
`================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`i
`
`COUNTERSTATEMENT OF
`QUESTION PRESENTED
`
`
` Whether a boundary line adjustment – a statutory
`tool in Washington to make minor changes to existing
`property lines between two or more contiguous parcels
`– erases the development history of the underlying
`real property and creates a new parcel with a new bun-
`dle of property rights, including the right to make a
`second economic use of the real property, even though
`it was fully developed in an economically viable man-
`ner prior to the City’s enactment of heightened envi-
`ronmental regulations.
`
`
`
`
`
`
`
`
`
`ii
`
`TABLE OF CONTENTS
`
`2
`
`4
`
`Page
`STATEMENT OF THE CASE ................................
`1
` A. Severson Lucratively Developed Parcel 9032
`and Its Neighboring Properties from 2001-
`2005 as a Joint Project .................................
` B. Severson Admitted Parcel 9032’s Sole Value
`Was Extracted as a Stormwater Detention
`Pond ..............................................................
` C. After Severson Completed the Project, the
`City Adopted Regulations for Environmen-
`tally Critical Areas that Affected Severson’s
`Ability to Further Develop Parcel 9032 ......
` D. Four Years After the ECA Regulations Were
`Adopted, Severson Adjusted His Boundary
`Lines to Shrink the Existing Parcel 9032 to
`the Area Encumbered by the Creek, Wet-
`land, and Associated Buffers .......................
` E. After Re-Drawing Parcel 9032 to Be Fully
`Encumbered by Critical Areas, Severson
`Decried the City’s Refusal to Grant an RUE
`to Further Develop Parcel 9032 .................. 10
`REASONS FOR DENYING THE PETITION ....... 13
`
`I. The Washington State Court of Appeals’ De-
`cision Rests on an Independent and Ade-
`quate State-Law Ground ............................. 14
` II. This Case Does Not Present the Question
`Severson Asks This Court to Decide ........... 18
` III. Murr and Lost Tree Village Bear No Rela-
`tion to This Case .......................................... 21
`
`5
`
`7
`
`
`
`
`
`iii
`
`TABLE OF CONTENTS – Continued
`
`Page
` IV. The Decision Below Is a Correct Application
`of This Court’s Decisions on Regulatory
`Takings ......................................................... 24
` V. Severson’s Appeal to Public Policy Is Disin-
`genuous ........................................................ 27
`CONCLUSION ....................................................... 29
`
`
`
`
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`City of Seattle v. Crispin, 149 Wash. 2d 896, 71
`P.3d 208 (2003) ........................................................ 17
`Coleman v. Thompson, 501 U.S. 722 (1991) ... 15, 16, 18
`Cox v. City of Lynnwood, 72 Wash. App. 1, 863
`P.2d 578 (1993) .................................................... 8, 12
`Deltona Corp. v. United States, 657 F.2d 1184
`(Fed. Cir. 1981) ........................................................ 20
`Forest Prop., Inc. v. United States, 177 F.3d 1360
`(Fed. Cir. 1999) ........................................................ 27
`Fox Film Corp. v. Muller, 296 U.S. 207 (1935) ........... 15
`Guimont v. Clarke, 121 Wash. 2d 586, 854 P.2d 1
`(1993) ....................................................................... 20
`Herb v. Pitcairn, 324 U.S. 117 (1945) ......................... 16
`Keystone Bituminous Coal Ass’n v. DeBenedictis,
`480 U.S. 470 (1987) ..................................... 20, 24, 25
`Lost Tree Village Corporation v. United States,
`707 F.3d 1286 (Fed. Cir. 2013), appeal dock-
`eted, No. 15-1192 ..................................................... 22
`Lucas v. S.C. Coastal Council, 505 U.S. 1003
`(1992) ................................................................. 26, 27
`Mason v. King Cnty., 134 Wash. App. 806, 142
`P.3d 637 (2006) .................................................... 8, 17
`Murr v. Wisconsin, 2015 WI App 13, 359 Wis. 2d
`675, 859 N.W.2d 628 (Table) (2014), cert.
`granted, 136 S.Ct. 890 (2016) ..................... 14, 21, 23
`
`
`
`
`
`v
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ......... 20
`Penn Cent. Transp. Co. v. City of New York, 438
`U.S. 104 (1978) .................................................. 24, 25
`Presbytery of Seattle v. King County, 114 Wash.
`2d 320, 787 P.2d 907 (1990) .............................. 24, 25
`Ventures Nw. Ltd. P’ship v. State, 81 Wash. App.
`353, 914 P.2d 1180 (1996) ....................................... 20
`Village of Euclid, Ohio v. Ambler Realty Co., 272
`U.S. 365 (1926) ............................................ 20, 24, 28
`
`
`
`STATUTES
`Revised Code of Washington (“Wash. Rev. Code”)
`§ 58.17.040 ............................................................... 16
` § 58.17.040(6) ................................................ 8, 15, 16
`Sammamish Municipal Code (“SMC”)
`§ 19.20.010 ................................................................. 9
` § 19A.04.060 ........................................................ 9, 17
` § 19A.04.060(2) ........................................................ 13
` ch. 19A.24 .................................................................. 8
` § 19A.24.020(4)(b) ..................................................... 9
` § 21A.25.040 .......................................................... 8, 9
` ch. 21A.50 .................................................................. 6
` § 21A.50.070(2)(a) ..................................................... 7
`
`
`RULES
`Sup. Ct. R. 15 ................................................................ 1
`
`
`
`
`
`1
`
`STATEMENT OF THE CASE
`Division One of the Washington State Court of Ap-
`
`peals unanimously affirmed a trial court’s order find-
`ing that no regulatory takings occurred as a matter of
`law when the City of Sammamish (“City”) adopted
`heightened environmental protection regulations after
`Petitioner Kinderace, LLC (“Severson”)1 had profitably
`developed his property, and those regulations left a
`small portion of Severson’s developed parcel encum-
`bered by critical areas. See Pet. App. A-1.
`
`The Washington State Court of Appeals under-
`
`standably rejected Severson’s attempt to manufacture
`a takings claim by using a boundary line adjustment
`(a Washington statutory tool to adjust boundary lines
`between existing parcels) to delineate a parcel fully
`constrained by critical areas years after the City
`adopted the stricter environmental regulations and af-
`ter Severson had lucratively developed the property.
`Id. at A-11.
`
`The City offers the following counterstatement of
`
`the case in order to clarify and correct the facts and the
`procedural posture of this case as recited in the Peti-
`tion for Writ of Certiorari (“Petition”). Sup. Ct. R. 15.
`
`
`
`1 Kinderace, LLC is the corporate alter ego of Elliot Severson.
`Washington State Court of Appeals, Division One, Clerk’s Papers
`(“CP”) at 2022; CP 299-301. Kinderace, LLC is fully owned by its
`managing member Camtiney, LLC, of which Elliot Severson is the
`managing member. CP 299; CP 301. Camtiney’s other members
`are Severson’s wife and three children. CP 301. For purposes of
`this Brief in Opposition, these entities and individuals are collec-
`tively referred to as “Severson.”
`
`
`
`
`
`2
`
`A. Severson Lucratively Developed Parcel
`9032 and Its Neighboring Properties from
`2001-2005 as a Joint Project.
`In the late 1990s, Severson and his business part-
`
`ners, Ed and Mark Roberts, acquired the development
`rights to two adjacent commercial parcels within the
`City of Sammamish, bearing Tax Assessor identifica-
`tion numbers 342506-9039 (“Parcel 9039”) and 342506-
`9058 (“Parcel 9058”). CP 1418-19.
`
`Severson sought to heavily develop these parcels,
`
`and proposed joint development via a phased project
`known as the “Plateau Professional Center.” CP 406-
`15; CP 1799. In 2002, construction commenced on the
`Plateau Professional Center project (“Project”), Phase
`1: a Starbucks and medical office building on Parcel
`9039. CP 337; CP 618; CP 1420-21. Phase 1 provided
`reciprocal vehicle access and circulation to the Phase 2
`development of Parcel 9058. Id.
`
`Severson then began construction on Phase 2 of
`
`the Project: a KFC and Taco Bell restaurant, and a
`Kindercare daycare facility on Parcel 9058.2 Id.; CP
`
`
`
`2 Severson claims that Parcel 9032 was part of a three-phase
`development proposal. Pet. 3-4. This is inaccurate. In fact, Sev-
`erson proposed a two-phase commercial development on Parcels
`9058 and 9039, and – years into the Project – purchased Parcel
`9032 for the express purpose of housing a stormwater detention
`pond to handle runoff from the commercial structures. CP 406-15;
`CP 1420-21. The development proposal unequivocally stated
`that Severson had no further construction proposed for the re-
`mainder of Parcel 9032 (aside from the stormwater detention
`pond). CP 382-84; CP 444-52; CP 809-23; CP 1168-82.
`
`
`
`
`
`
`3
`
`384-98; CP 444-52; CP 256-68. To accommodate Sev-
`erson’s aggressive plans to build out Parcel 9058, a
`stormwater detention pond to handle runoff from the
`project had to be placed off-site.3 CP 406-15; CP 1448;
`CP 1799; CP 386-98. With two commercial businesses
`proposed for Parcel 9058, there was simply no room left
`to accommodate the necessary stormwater detention
`pond for these structures. Id.
`
`In June 2004, Severson purchased adjacent Parcel
`
`342506-9032 (“Parcel 9032”), the property at issue in
`this case, for the express purpose of housing the storm-
`water detention pond. CP 435-37; CP 1448. Severson
`specifically included the whole of Parcel 9032 in the
`Project proposal to the City. CP 382-84; CP 444-52;
`CP 809-23; CP 1168-82. Severson testified that the in-
`tensity of development in Phase 2 of the Project was
`possible only because Parcel 9032 was used for the
`stormwater detention pond:
`
`We made a deal [to purchase Parcel 9032] to
`really save our investment in 9058, because
`we had so much money sunk into 9058 that
`the only way we could make that work was if
`
`
`
`3 Severson states the City “conditioned” his development on
`Parcel 9058 on his use of Parcel 9032 as a stormwater pond. Pet.
`4. This is inaccurate. To the contrary, Severson wanted to place
`two commercial uses (a restaurant and daycare) on Parcel 9058,
`which left no room for the required facilities to handle stormwater
`runoff from both structures. CP 406-15; CP 1448; CP 1799; CP
`386-98; CP 256; CP 265. Rather than reduce the footprint of his
`proposal, Severson purchased Parcel 9032 for the express purpose
`of housing the stormwater detention pond to accommodate the
`structures on Parcel 9058. Id. Doing so, according to Severson,
`“save[d] [his] investment into 9058.” CP 1448.
`
`
`
`
`
`4
`
`we could get two uses on 9058. And the
`only way we could do that is if the detention
`pond was not located on 9058 but was else-
`where. And the elsewhere was north of the
`creek on 9032.
`
`CP 1448 (emphasis added). Severson’s Project on Par-
`cels 9039, 9058, and 9032 was completed in July 2005.
`CP 1182; CP 1434.
`
`Severson sold Parcel 90584 (containing the KFC
`
`and Taco Bell restaurant, and the daycare facility) in
`2006 for $3,815,000.5 CP 524-25. Again, Severson tes-
`tified that the intensity of development and Parcel
`9058’s related sale price were only possible because
`Parcel 9032 was used as the stormwater detention
`pond serving Parcel 9058. CP 1448; CP 1505-06.
`
`
`B. Severson Admitted Parcel 9032’s Sole Value Was
`Extracted as a Stormwater Detention Pond.
`In a letter to the City in 2004, Severson’s repre-
`
`sentative admitted that Severson had utilized all of
`
`
`4 Severson’s timeline includes a material inaccuracy. Pet. 5.
`While Severson sold Parcel 9058 in 2006, he did not shift the
`boundary line between Parcel 9032 and Parcel 9058 – so that the
`stormwater detention pond was part of the commercial develop-
`ment on Parcel 9058 – until 2008. CP 524-25; CP 539.
`
`5 Severson purchased Parcel 9058 for $888,140. CP 351. Par-
`cel 9032 was purchased for $175,000. CP 435. Petitioner incor-
`rectly states he obtained no compensation for the use of Parcel
`9032 for stormwater detention. Pet. 5-6. Severson testified that
`his ability to build out Parcel 9058 with two businesses – and the
`lucrative sale price therefor – was due to the placement of the
`detention pond on Parcel 9032. CP 1448.
`
`
`
`
`
`5
`
`the buildable area on Parcel 9032 to construct the
`stormwater detention pond. CP 256; CP 265. The letter
`admits that even if Severson replaced the stormwater
`pond on Parcel 9032 with an above ground stormwater
`vault, which would have a smaller footprint than the
`current detention pond:
`
`[T]he shape and location of the parcel on
`which the pond is located would not yield any
`more useable land area for the project from
`this reduced footprint. Relocating the storm
`facility to a different portion of the site is of no
`benefit either. Because of the environmen-
`tal constraints on the parcel where the
`pond is located, it effectively has no
`value as a building site and only has
`value as a storm drainage pond location.
`
`CP 265 (emphasis added). Notably, this letter preceded
`the City’s adoption of more stringent environmental
`regulations by more than a year. Similarly, as part of
`the Project development proposal, Severson completed
`a Washington State Environmental Policy Act check-
`list which asked whether he intended to further de-
`velop the parcels utilized in said Project (including
`Parcel 9032). CP 797. Severson’s answer: “No.” Id.
`
`
`C. After Severson Completed the Project, the
`City Adopted Regulations for Environmen-
`tally Critical Areas that Affected Severson’s
`Ability to Further Develop Parcel 9032.
`On December 20, 2005, the Sammamish City Coun-
`
`cil adopted Ordinance No. 02005-193, which amended
`
`
`
`
`
`6
`
`Sammamish Municipal Code (“SMC”) ch. 21A.50 re-
`garding environmentally critical areas within the City
`(“ECA Regulations”). CP 462-522. The ECA Regula-
`tions increased the buffers for both bogs and streams
`throughout the City. CP 499; CP 489.
`
`As a result of the ECA Regulations, George Davis
`
`Creek (“Creek”) – which bisects Parcel 9032 – was
`identified as a stream of special significance, with ex-
`panded protected buffers. CP 489; CP 497-99; CP 73-4;
`CP 331; CP 618. At the time the City passed the ECA
`Regulations, the portion of Parcel 9032 north of the
`Creek housed the storm water detention pond, while
`the southern portion of Parcel 9032 was subsumed by
`newly expanded stream, wetland, and bog buffers. CP
`499; CP 489; CP 73-4; CP 331.
`
`In August 2006, Severson’s representative met with
`
`the City to discuss proposed construction of a parking
`lot south of the Creek on Parcel 9032.6 CP 622-24; CP
`
`
`
`6 Severson states that, even before the ECA Regulations took
`effect, the southern portion of Parcel 9032 was sufficiently large
`to provide space for development. Pet. 6-7. This is misleading. Par-
`cel 9032 pre-ECA Regulations is immaterial to this analysis as
`Severson selected a use for the Parcel and developed it accord-
`ingly before the ECA Regulations were adopted. Absent a reduc-
`tion of the buffers on the lower portion of the Parcel 9032 – which
`would not have been permitted under the SMC, because of the
`previous construction of the stormwater pond on Parcel 9032 – no
`such development could have occurred on the southern portion.
`CP 622-24. Moreover, even before the ECA Regulations took effect,
`any development on the southern portion was substantially lim-
`ited due to the Creek and its buffers, and the wetlands and their
`buffers on neighboring parcels. CP 231; CP 1610. The other exam-
`ple referenced by Severson does not involve two proposed uses of
`
`
`
`
`
`
`7
`
`1517; CP 1544. Pursuant to the ECA Regulations, con-
`struction within wetland, stream, and associated buff-
`ers is authorized only by means of buffer averaging,
`buffer modification, or approval of a reasonable use ex-
`ception (“RUE”). CP 622-24; SMC § 21A.50.070(2)(a).
`During the meeting, City staff cautioned Severson
`“that the proposed parking lot does not satisfy the cri-
`teria for approval of a [RUE], in part because the prop-
`erty [Parcel 9032] is already in use [as a stormwater
`detention facility].” CP 622-24.
`
`
`D. Four Years After the ECA Regulations Were
`Adopted, Severson Adjusted his Boundary
`Lines to Shrink the Existing Parcel 9032 to
`the Area Encumbered by the Creek, Wet-
`land, and Associated Buffers.
`In 2008, years after the City advised Severson that
`
`he would not be entitled to a second economic use of
`Parcel 9032, Severson’s representative requested a
`boundary line adjustment (“BLA”). CP 539; CP 542-44.
`The BLA adjusted the boundaries of Parcel 9032 to
`carve off the detention pond on the northern portion of
`the parcel, which then became part of Parcel 9058. Id.
`Severson knowingly adjusted the boundaries of Parcel
`9032 so that the entire parcel was now constrained by
`the Creek, wetland area, and associated buffers. Id.
`
`
`a single parcel with environmental constraints, but rather a City-
`owned parcel used as a stormwater detention pond. CP 365; CP
`1353; CP 1782.
`
`
`
`
`
`8
`
`A BLA is an administrative process in Washington
`
`whereby a property owner may request the adjustment
`of property lines between legally created lots; notably,
`it is initiated by an owner, not a city. Revised Code of
`Washington (“Wash. Rev. Code”) § 58.17.040(6); Pet.
`App. F-1 – F-3, SMC ch. 19A.24 (Boundary Line Ad-
`justments). This statutory process cannot be used to
`create a lot or reduce the size of a lot so that it contains
`insufficient area and dimension to meet minimum zon-
`ing requirements, except as may be provided by a mu-
`nicipality’s code. See Wash. Rev. Code § 58.17.040(6). A
`city may not rely on discretionary factors in deciding
`whether to approve a requested BLA. See Cox v. City of
`Lynnwood, 72 Wash. App. 1, 7-8, 863 P.2d 578 (1993).
`When an application satisfies the statutory require-
`ments, the BLA must be granted. Id. A city can face
`monetary penalties and civil damages if it denies the
`requested BLA, particularly on the basis of any crite-
`rion not provided by law. Id.
`
`For example, State law prohibits the use of a
`
`BLA that results in a “substandard, undersized lot,”
`as defined by a city or county. Wash. Rev. Code
`§ 58.17.040(6); see Mason v. King Cnty., 134 Wash. App.
`806, 811, 142 P.3d 637 (2006). Severson’s proposed BLA
`did not result in substandard, undersized lots. CP 531;
`see Mason, 134 Wash. App. at 811 (holding that “local
`governments are free to define the dimensions of a
`‘building site’ ”). Under SMC § 21A.25.040, the City
`does not exclude critical areas when determining
`whether the proposed boundaries meet the City’s di-
`mensional requirements for lots. As a result, a lot can
`
`
`
`
`
`9
`
`be encumbered by a wetland and its buffer and still
`meet minimum lot-size and setback requirements. See
`SMC § 21A.25.040.
`
`Because Severson’s application met all of the re-
`
`quirements for a BLA under the SMC, the City approved
`the requested BLA. CP 530; CP 1614-16. Importantly,
`SMC § 19A.24.020(4)(b) states that a BLA must result
`in a lot that qualifies as a “building site” – a term de-
`fined at SMC § 19A.04.060 as “an area of land, consist-
`ing of one or more lots or portions of lots” that is
`“capable of development” or “currently legally devel-
`oped.”7 See Pet. App. F-1 – F-2. Here, because of Parcel
`9032’s previous development history, the BLA con-
`tained an “Approval Note” that warned Severson: “This
`request qualifies for exemption under SMC 19.20.010.
`It does not guarantee the lots will be suitable for de-
`velopment now or in the future.” CP 530.
`
`Shortly after Severson completed his BLA, he filed
`
`an appeal of the tax assessed value of Parcel 9032 with
`King County. CP 738-42; CP 746; CP 1614-16. Sev-
`erson’s appeal was granted. Id. As a result, the tax as-
`sessed value of post-BLA Parcel 9032 was reduced
`from $198,600 to $60,000, and then further reduced to
`$50,000. CP 744; CP 746; CP 606.
`
`
`7 The Petition omits the latter clause of the definition of
`
`“building site” set out in SMC § 19A.04.060, which allows the City
`to approve a BLA so long as the resulting lot is “currently legally
`developed.” Pet. 6. The Washington State Court of Appeals noted
`the same omission in Severson’s previous briefing as well. Pet.
`App. A-13.
`
`
`
`
`
`10
`
`E. After Re-Drawing Parcel 9032 to Be Fully
`Encumbered by Critical Areas, Severson De-
`cried the City’s Refusal to Grant an RUE to
`Further Develop Parcel 9032.
`Elliot Severson formed Kinderace, LLC on Sep-
`
`tember 18, 2012. CP 299. Two days later, he personally
`transferred ownership of post-BLA Parcel 9032 from
`his development corporation to Kinderace, LLC. CP
`615-16. On June 17, 2013, Severson filed a lawsuit
`against the City in King County Superior Court, alleg-
`ing post-BLA Parcel 9032 was the subject of a regula-
`tory taking because the ECA Regulations precluded its
`[further] development. CP 1-6.
`
`Notably, Severson failed to submit a development
`
`application for post-BLA Parcel 9032 before filing a
`takings lawsuit.8 CP 1-6. In order to avoid dismissal for
`failure to do so, on July 5, 2013, Severson applied to the
`City for an RUE to build a Pagliacci Pizza store on
`post-BLA Parcel 9032. CP 56-65; CP 180; CP 182. The
`application stated that Kinderace (incorporated only
`one year earlier) had “owned the property for nine (9)
`years.” CP 61. Severson contended that an RUE was
`warranted because, absent an RUE, he would be de-
`nied all reasonable use of post-BLA Parcel 9032.9 That
`
`
`8 The Petition misstates the sequence of events: Severson
`filed a lawsuit alleging a regulatory taking of Parcel 9032 before
`ever applying for an RUE to develop that parcel. Pet. 9; CP 1-6. In
`so doing, Severson demonstrated his use of the BLA was for the
`purpose of attempting to manufacture a takings claim. Id.
`
`9 Severson inaccurately describes Parcel 9032 in its current
`state. Pet. 16. It is not “taxed for its value as undeveloped commer-
`cial property,” as Severson petitioned for a substantial reduction
`
`
`
`
`
`
`11
`
`argument ignored the substantial economic use de-
`rived from pre-BLA Parcel 9032 as a result of the
`highly profitable Project. CP 56-65.
`
` While the takings case was pending, the City de-
`nied Severson’s RUE application. CP 71-84. The City’s
`Hearing Examiner affirmed the City’s decision:
`
`The question now is whether the new parcel
`Severson created (by shrinking the size of Par-
`cel 9032, after a reasonable use had been ob-
`tained and after more restrictive sensitive
`area regulations had been adopted, such that
`it no longer contains the portion of the lot
`which was actively used in the 2003/2004 de-
`velopment) is itself eligible for a reasonable
`use exception. It is not.
`
`CP 1793-94.
`
`Severson appealed the Hearing Examiner’s deci-
`
`sion to King County Superior Court under Washing-
`ton’s Land Use Petition Act (“LUPA”), Wash. Rev. Code
`ch. 36.70C, and the LUPA case was consolidated with
`the takings case by stipulation. CP 2628-29. The tak-
`ings claim was dismissed on summary judgment by the
`trial court, and the Washington State Court of Appeals
`affirmed. Pet. App. C-3, A-1.
`
`The Washington State Court of Appeals held the
`
`trial court committed no error by dismissing the
`takings claim where, “[b]y means of a boundary line
`
`
`in its taxed assessed value due to the environmental constraints
`on the parcel, after obtaining the BLA. CP 744; CP 746; CP 606.
`
`
`
`
`
`12
`
`adjustment, Kinderace LLC created a new 32,850
`square foot parcel of which all but 83 square feet had
`been designated by the City of Sammamish as environ-
`mentally critical areas and buffers.”10 Pet. App. A-1.
`The Court’s analysis focuses exclusively on the import
`of the BLA, holding that:
`
`[E]ven if [the City] had determined that the
`proposed new Parcel 9032 was not developa-
`ble without an exception for reasonable use,
`[the City] still could not have denied Kin-
`derace’s boundary line adjustment applica-
`tion when it met all of the requirements.[11]
`Cox v. City of Lynnwood, 72 Wn. App. 1, 7-8,
`863 P.2d 578 (1993) (city may not look beyond
`whether the individual application complies
`with its ordinance to justify denial of the
`boundary line adjustment). The application
`satisfied RCW 58.17.040(6) because it did not
`create any additional lots. And it qualified
`as a building site under SMC 19A.04.060(2)
`because at the time of the boundary line ad-
`justment, it was an area of land “[c]urrently
`
`
`
`10 Both the trial court and the Court of Appeals agreed that
`the BLA did not erase the development history of the original Par-
`cel 9032. Pet. App. C-2 and A-11.
`
`11 The Petition erroneously states the City’s approval of the
`BLA bears legal significance for the takings analysis, and that the
`City “requir[ed] that Severson construct the detention pond as
`a mandatory condition for approval of the development of adja-
`cent Parcel 9058.” Pet. 11. The former claim was briefed exten-
`sively by the parties, and the Court of Appeals noted Petitioner
`proffered no authority to support this claim. Pet. App. A-12. The
`latter statement is simply false, based on the record. CP 406-15;
`CP 1448; CP 1799; CP 386-98; CP 256; CP 265.
`
`
`
`
`
`13
`
`legally developed” as part of the Plateau Pro-
`fessional Center. SMC 19A.04.060(2).
`
`Pet. App. A-13. Moreover, the Washington State Court
`of Appeals affirmed the trial court’s finding that the
`BLA did not erase the development history of Parcel
`9032, and that “Kinderace had derived an economic
`use of new Parcel 9032 . . . at the time the [ECA] regu-
`lations were enacted.” Pet. App. A-11. The Washington
`State Court of Appeals noted that to ignore the devel-
`opment history:
`
`[W]ould enable a property owner to subvert
`the environmental regulations by changing
`parcel boundaries [via a BLA] to consolidate
`critical areas. Once an owner had delineated
`a parcel that was entirely constrained, he or
`she could claim deprivation of all economi-
`cally viable use.
`
`Id. The Washington State Supreme Court denied re-
`view. Pet. App. D-1.
`
`--------------------------------- ---------------------------------
`
`REASONS FOR DENYING THE PETITION
`Severson’s Petition should be denied for five rea-
`
`sons.
`
`First, the Washington State Court of Appeals’ de-
`
`cision is based on an independent and adequate state
`law ground: the Washington State Court of Appeals
`held that a boundary line adjustment – a tool created
`by statute in Washington State – does not strip real
`
`
`
`
`
`14
`
`property of its development history and does not create
`parcels that are entitled to second economic uses.
`
`Second, the Washington State Court of Appeals
`
`did not “aggregate” parcels in the manner posited in
`the Petition. Stated differently, this case does not pre-
`sent the question that this Court is asked to decide.
`The assertion that the Washington State Court of
`Appeals’ decision here conflicts with decisions of
`this Court and other federal courts of appeals rests
`squarely on a mischaracterization of the Washington
`State Court of Appeals’ ruling.
`
`Third, Murr v. Wisconsin, 2015 WI App 13, 359
`
`Wis. 2d 675, 859 N.W.2d 628 (Table) (2014), cert.
`granted, 136 S.Ct. 890 (2016), which arises under the
`“merger” doctrine, has no bearing whatsoever on the
`issues in this matter. There is no reason to hold this
`Petition pending Murr’s outcome.
`
`Fourth, the decision below is a correct application
`
`of this Court’s previous decisions.
`
`Fifth and finally, the Washington State Court of
`
`Appeals identified the true concern of public policy at
`the heart of this matter. The Petition’s appeal to policy
`should be rejected.
`
`
`I. The Washington State Court of Appeals’ De-
`cision Rests on an Independent and Ade-
`quate State-Law Ground.
`The Petition misstates the lower court’s holding in
`
`an attempt to manufacture a federal question ripe for
`
`
`
`
`
`15
`
`review. Pet. i, 10. Although the Washington State Court
`of Appeals’ decision mentions in passing the federal
`takings clause, its analysis and holding are solely fo-
`cused on state-law takings jurisprudence, and more
`importantly, an independent state-law issue: whether
`a property owner in Washington State can use a BLA
`– a state statutory tool for adjusting the boundaries of
`existing lots – to create new economic value in a parcel
`from which that same owner had previously extracted
`substantial economic value. Pet. App. A-1, A-8 – A-14;
`Wash. Rev. Code § 58.17.040(6). The Washington State
`Court of Appeals rejected the claim that a BLA creates
`a new lot with a new bundle of property rights. Pet.
`App. A-11 – A-14. Thus, on this record – where Sev-
`erson strategically used a BLA to reconfigure a parcel
`to render it fully encumbered by environmentally crit-
`ical areas, after having already obtained a substantial
`economic use from the unencumbered portion of the
`original parcel – no takings claim can arise.
`
`This Court accordingly lacks jurisdiction over this
`
`case because the Washington State Court of Appeals’
`decision “rests on a state law ground that is independ-
`ent of the federal question and adequate to support
`the judgment.” Coleman v. Thompson, 501 U.S. 722,
`729 (1991) (citing Fox Film Corp. v. Muller, 296 U.S.
`207, 210 (1935)). This Court will not review a question
`of federal law decided by a state court if the decision
`rests on a state ground that is independent of the fed-
`eral question and adequate to support the judgment.
`See, e.g., Fox Film, 296 U.S. at 210. “This principle ap-
`plies whether the state law ground is substantive or
`
`
`
`
`
`16
`
`procedural.” Id. “In the context of direct review of a
`State Court judgment, the independent and adequate
`state ground doctrine is jurisdictional.” Coleman, 501
`U.S. at 729. “Because this Court has no power to review
`a state law determination that is sufficient to support
`the judgment, resolution of any independent federal
`ground for the decision could not affect the judgment
`and would therefore be advisory.” Id. (citing Herb v. Pit-
`cairn, 324 U.S. 117, 125-26 (1945)).
`
`Severson’s takings claim rested squarely on the
`
`aforementioned Washington statutory issue, as the
`Washington State Court of Appeals noted:
`
`[Petitioner] argues that under RCW 58.17.040(6),
`the City’s approval of the boundary line adjust-
`ment, which created new Parcel 9032, estab-
`lished its right to develop the lot irrespective
`of any prior development associated with old
`Parcel 9032. Kinderace’s argument turns
`on its interpretation of RCW 58.17.040(6).
`
`Pet. App. A-9 (emphasis added). Thus, the largest part
`of the Washington State Court of Appeals’ opinion
`grappled with state statutory concepts and state com-
`mon law pertaining to the interpretation and appli-
`cation of Wash. Rev. Code § 58.17.040. Pet. App. A-9 –
`A-14. In so doing, the Washington State Court of Ap-
`peals “reject[ed] the argument that Kinderace can use
`a boundary line adjustment to isolate the portion of
`its already developed property that is entirely con-
`strained by critical areas and buffers, and then claim
`that the regulations have deprived that portion of all
`economically viable use.” Pet. App. A-12.
`
`
`
`
`
`17
`
`In reaching that holding, the Washington State
`
`Court of Appeals rejected Severson’s argument that,
`under state law, a BLA “created new Parcel 9032 as a
`new legal lot that carries with it the right to some eco-
`nomically viable use.” Pet. App. A-9. The Washington
`State Court of Appeals further
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