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Libera v. City of Port Angeles

Court of Appeals of Washington, Division 2

December 31, 2013

MICHAEL A. LIBERA, Appellant,
v.
CITY OF PORT ANGELES, a municipality in the State of Washington; ROGER VESS, Assistant Civil Engineer for the City of Port Angeles, in his official capacity; STEPHEN SPERR, City Engineer for the City of Port Angeles, in his official capacity, Respondents.

ORDER PUBLISHING OPINION

JEFFERSON COUNTY, WASHINGTON, a nonparty to this action, in accordance with RAP 12.3, has moved to publish the opinion filed on October 29, 2013. The Court has determined that the opinion in this matter satisfies the criteria for publication. It is now

ORDERED, that the motion to enlarge time is granted and the opinion's final paragraph reading:

is deleted. It is further

ORDERED, that this opinion will be published.

WORSWICK, C.J.

Michael Libera appeals summary dismissal of his claims against the City of Port Angeles, which had delayed connecting Libera's property to the City storm drain. Libera argues that the superior court erred in dismissing his claim of intentional interference with business expectancy by government delay both on statute of limitations grounds and on the merits. Because Libera failed to establish an issue of material fact as to whether the City had an improper purpose or used improper means in delaying connecting Libera's property to the City's storm drain, we affirm summary judgment in favor of the City.

FACTS

Michael Libera owned property on Fairmount Avenue in Port Angeles. Libera began pursuing a plan to operate a "quick lube" business on the property to recycle oil from "big rig" trucks. Clerk's Papers at 142, 219. The City's storm drain serving Libera's property was an old clay tile structure approximately 200 feet long, ending 100 feet short of the intersection of Fairmount Avenue and SR (service road) 101. Libera contacted the City once in 1984 and again in 1988 about paving the parking lot on his property, and about the problems that the defective storm drain would cause on his property. Libera told the City that the storm drain caused water to pool at the intersection of Fairmont Avenue and SR 101. Libera wanted the City to repair and upgrade the storm drain so that he could reliably connect his property to it without water pooling on his property during his business operations. The City responded to both contacts by letter, but mentioned only the paving requirements, not the storm drain. Libera secured his first set of permits for his oil business around 1984.[1]

Sometime in the 1990' s Libera again requested and received building permits for his oil business. In 1995, he began to seek bids from consulting engineers; in 1996 he had a professional engineer prepare plans for the property's drainage system. In 1997, however, Libera slowed development on his oil business to focus on a grocery store business. During this time, his permits for his oil business expired. Other than to make a business plan in the early 2000's, Libera did not significantly develop the property in preparation for his business from the late 1990's until around 2007.

In 2007, Libera again began developing the property in earnest, and sought to acquire a new set of permits from the City. When he began this new process, he expected to open his business within one year. The City did not respond to Libera's requests to repair the storm drain until months later, on January 22, 2008, with a. letter informing him that he needed to update his development plans to provide for a number of additional storm water requirements added as of 2005.

The City's new rules required Libera to construct oil/water separators, infiltration systems, foundation drains, and a catch basin with a drywell. Libera had concern about the City's new requirements, because he believed they would cause water to pool on his property, and the City provided no instructions on how to remove that pooled water. Libera had expected that the City would allow him to connect his property to the storm drain, thus resolving the drainage problems on his property.

In March or April of 2008, the City's Assistant Civil Engineer Roger Vess met with Libera, a meeting Libera had attempted to set up for months. Vess informed Libera that the City would not repair the storm drain, nor would the City allow Libera to connect his property to the storm drain.[2] Vess told Libera that Libera could continue developing his property by paving the road (which Libera estimates would have cost him $22, 000). Vess left Libera with the impression that if Libera did this, then two to three months later, the City would remove the new pavement, fix the drain, and repave the road, all at the City's expense. Libera stated that tearing up and repaving the road would have shut down his business for a period of time. The City refused two requests from Libera to allow him to fix the storm drain at his own expense.

Libera claims that he was "basically ready to open" his business at this time, and would have done so but for the City's refusal to connect his property to. the storm drain. Libera cites two reasons as to why he could not continue any development of his property until the City fixed and connected his property to the storm drain: First, no reputable contractor would complete Libera's paving work and connect his property to the City's storm drain while the drain was still defective.[3] Second, Libera did not want to open his business without a repaired storm. drain because water could potentially ...


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