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Cainion v. City of Bainbridge Island

United States District Court, W.D. Washington, Tacoma

May 27, 2014

ANDREW CAINION, Plaintiff,
v.
CITY OF BAINBRIDGE ISLAND, STEVE BONKOWSKI, KATHARINE COOK, Defendants.

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ROBERT J. BRYAN, District Judge.

This matter comes before the court on Defendants' Motion for Summary Judgment. Dkt. 16. The court has considered the relevant documents and the remainder of the file herein.

PROCEDURAL HISTORY

On August 30, 2013, plaintiff filed a complaint against the City of Bainbridge Island; Steve Bonkowski, Mayor of the City of Bainbridge Island; and Katharine Cook, Director of the City of Bainbridge Island Department of Planning and Community Development. Dkt. 1. The complaint alleges that defendants discriminated against plaintiff based upon his race, in violation of 42 U.S.C. ยง 1983.

Plaintiff was initially represented by counsel, who withdrew on December 4, 2013. Since that time, plaintiff has been proceeding pro se.

RELEVANT FACTS

Plaintiff's Purchase of Property and Re-Zone. In 1989, plaintiff purchased a parcel of property about a half-mile from Fletcher Bay, on the western side of Bainbridge Island. When plaintiff purchased the property in 1989, the City of Bainbridge Island had not yet incorporated; the property was within Kitsap County jurisdiction. The Fletcher Bay property was zoned residential at the time plaintiff bought it.

In the late 1980s, plaintiff sought a Planned Unit Development (PUD) and re-zone to commercial. Kitsap County granted the request and rezoned the property to commercial. Plaintiff, in turn, agreed to complete the development within three years. Around this time, contaminants were discovered in the soil nearby, leading to litigation with the Department of Ecology and protracted bankruptcy proceedings. Plaintiff did not develop the Fletcher Bay property within three years.

In the interim, the City of Bainbridge Island incorporated and assumed jurisdiction in 1991. Noting that Kitsap County's PUD regarding the Fletcher Bay property had lapsed, the City of Bainbridge Island began the process to revoke the re-zone. A hearing was held in April of 1996 before a hearing examiner. Plaintiff was represented by counsel. The hearing examiner revoked the PUD and re-zone. Plaintiff did not appeal further or seek judicial review. Plaintiff's property reverted to Open Space/Residential zoning.

Comprehensive Plan and Neighborhood Service Zone. The Land Use Element of the City of Bainbridge Island's Comprehensive Plan provides that Neighborhood Service Centers (NSCs) "serve as small-scale commercial activity centers, which supplement that of the city center, but remain at only a "slightly higher density to reinforce their role as small-scale, community centers." Dkt. 19, at 16-19. NSCs are regulated "to provide a mix of neighborhood-scale residential, commercial, and service activity that is compatible with the scale, character, and intensity of the surrounding residential neighborhood and that minimizes impacts..." BIMC 18.06.050(A). The City of Bainbridge Island has three NSCs: Island Center, Lynwood Center and Rolling Bay. Plaintiff's residentially-zoned property is just outside the Island Center NSC zone. Plaintiff has been working to incorporate his property into the Island Center NSC zone, which would permit commercial development. Pursuant to the City of Bainbridge's Comprehensive Plan, changes to the boundaries of an NSC must go through a special planning process. See Dkt. 19, at 14-20. According to the declaration of Katharine Cook, Director of Planning and Community Development for the City of Bainbridge Island, this process is unique and recognizes the special characteristics of the area; and the process allows for collaboration, and even mediation, between the stakeholders (which include the public, city staff, planning commission, and elected officials). Dkt. 19, at 3. A special planning process may be requested, in writing, by at least one owner of property located within a special planning area. See Dkt. 19.

Special Planning Area Process in 2002. In approximately 2002, a special planning area process was commenced for Island Center. According to Ms. Cook, during that process, much of the surrounding neighborhood was strongly opposed to any expansion of the NSC, and individuals at the meeting were extremely hostile. Dkt. 19, at 3-4. The process was therefore discontinued. Id. Ms. Cook stated in her declaration that [r]ace played no role in this whatsoever. The non-expansion of the Island Center NSC affected the rights of minorities and non-minorities alike." Dkt. 19, at 4. Plaintiff testified in his deposition that, since then, he has made no written requests for another special planning area process, although he stated that he "talked to [Ms. Cook] about it a couple times." Dkt. 17, at 27.

2007 and 2010 Re-zone Efforts. In 2007, plaintiff submitted a proposal to the city council to amend the Comprehensive Plan to change the boundaries of the Island Center NSC to include his property. Dkt. 19, at 4. The City Council denied his request. Plaintiff did not appeal to the Washington Growth Management Board or Superior Court.

Plaintiff petitioned the City Council again in 2010, seeking effectively the same thing as he had in 2007. Plaintiff testified in his deposition that three individuals opposed the request but no one supported the application. Dkt. 17, at 26. The city planning commission supported the application; the city staff did not support the application. On August 25, 2010, the Bainbridge Island City Council denied the request. The City Council resolution stated as follows:

The primary basis for the denial of CPA 14567 by the City Council is that the application does not comply with decision criteria established by BIMC 18.117.050(C)(2), requiring consistency with the overall intent of the Comprehensive Plan. Specifically, CPA14567 does not comply with Land Use Policy NSC 1.3 and LU 1.9, which requires boundaries to the Neighborhood Service Center be determined by a Special Planning Area Process to ...

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