United States District Court, W.D. Washington
ALLENMORE MEDICAL INVESTORS, LLC, a Washington limited liability company, Plaintiff,
THE CITY OF TACOMA, WASHINGTON, a municipal corporation; MARILYN STRICKLAND, an individual; LAUREN WALKER, an individual; RYAN MELLO, an individual; JAKE FEY, an individual; VICTORIA WOODARDS, an individual; MARTY CAMPBELL, an individual; DAVID BOE, an individual; and JOHN DOE 1-20, Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
B. Leighton United States District Judge
Ronald B. Leighton This cause came on for a non-jury trial on
March 6, 2017, the Honorable Ronald B. Leighton presiding.
The Court has considered all trial testimony and exhibits.
The Court has further considered the Pre-Trial Order,
together with all relevant attachments, all pleadings and
discovery on file, all post-trial submissions, the
parties' proposed findings of facts and conclusions of
law, and trial briefs. The Court has also considered
applicable statutory and case law. On the basis of its own
careful observations during trial, its credibility
assessments of all witnesses appearing live at trial, or by
depositions, and the detailed consideration of all of the
above materials, the Court now enters the following Findings
of Fact and Conclusions of Law.
Plaintiff Allenmore Medical Investors, LLC (AMI) is a limited
liability company formed under the laws of the State of
Washington. AMI is, and has been, managed by Jeffrey L.
Oliphant. AMI was at all relevant times the developer of the
commercial project located at 1965 South Union Avenue,
Tacoma, Washington, now known as Allenmore Marketplace.
Defendant City of Tacoma, Washington is a municipal
corporation. It has authority and responsibility for issuance
of building permits, land use approvals, parcel configuration
approvals, including boundary line adjustments, and other
approvals for real property developments within the City.
2011 and 2012, Defendants Marilyn Strickland, Lauren Walker,
Ryan Mello, Jake Fey, Victoria Woodards, Marty Campbell, and
David Boe were members of the Tacoma City Council. Marilyn
Strickland was the Mayor, and Lauren Walker was the Deputy
Mayor (Individual Defendants).
February 2010, JLO Washington Enterprises, Inc. (JLO)
contracted to purchase real property located in Tacoma,
Washington, then owned by the Tacoma Lodge No. 174 of the
Benevolent & Protective Order of Elks. The Elks Property
consisted of 17.7 acres of real property located between
Union and Cedar Avenues, north of South 23rd
Street, in Tacoma.
is a Washington corporation and an affiliate of AMI. In May
2011, JLO assigned to AMI all of JLO's right, title,
powers, and interest in the purchase and sale agreement with
the Elks and the Elks Property, and AMI accepted the
assignment. An “Assignment of Buyer's Interest in
Purchase and Sale Agreement” was recorded on June 14,
2011 in the real property records of Pierce County,
Washington under Recording Number 201106140566.
December 2010, JLO filed a State Environmental Protection Act
(“SEPA”) application, together with a grade and
fill permit application, with the City of Tacoma, including
all required studies and backup to support the applications.
The primary development project described in the SEPA
application consisted of a medical and related professional
office campus, including up to 760, 000 square feet of
medical and professional office space, a hospital, and retail
space. The SEPA application also included an alternate
project consisting of 155, 000 square feet of retail space
and 200, 000 square feet of medical and professional office
space. On or about March 23, 2011, the City of Tacoma issued
a Mitigated Determination of Non-Significance (MDNS). On or
about July 27, 2011, the City of Tacoma issued a Final
Mitigated Determination of Non-Significance
(SEP2010-40000156354) and Building Permit (grade and fill
Beginning in early 2010, JLO began working with a large
medical services provider, MultiCare, to be the primary
occupant of the commercial project on the Elks Property.
MultiCare became indecisive regarding its needs in the spring
of 2011, and communicated to JLO its final decision not to
proceed with the project in July 2011.
Given MultiCare's indecisiveness and subsequent decision
not to participate in the project, JLO reviewed alternative
uses and occupants for the Elks Property, and the
entitlements and other approvals needed to proceed with an
May 2011, Kevin Sweet, Walmart's Real Estate Senior
Director, and Jeffrey Oliphant reached a handshake agreement
to acquire the “Elks Lodge” property for $19.00
per square foot, or just under $11.9 million. Mr. Sweet
obtained approval from Walmart's Real Estate Committee on
August 15, 2011 at the agreed price, with a closing date of
November 1, 2011, and without further entitlements beyond
those AMI held at that time: a Final Modified MDNS and the
associated grade and fill permit.
August 2011, AMI proposed a U-Turn for southbound Union
Avenue to access the proposed development. The U-Turn was
placed on the agenda for the August 24, 2011 meeting of the
City's Environmental and Public Works Committee (EPW
Committee). Kurtis Kingsolver, the Tacoma City Engineer and
City Traffic Engineer, requested that the EPW Committee give
the U-Turn a “Do Pass” recommendation.
the August 24, 2011 meeting, EPW Committee members asked
whether the proposed development of the Elks Property
included a “big box” retailer. The EPW Committee
rejected the U-Turn recommendation and did not make a
“Do Pass” recommendation to the City Council. A
decision on the U-Turn proposal was scheduled for the next
City Council meeting, to be held on August 30, 2011.
While the EPW Committee meeting was still in session,
Defendant Mello emailed City Attorney Elizabeth Pauli
“RE: Walmarts.” Following the EPW Committee
meeting on August 24, 2011, Jeffrey Oliphant informed several
Councilmembers the Project would include a Walmart store.
During or shortly after the Committee meeting, Councilmember
Mello requested the City Attorney draft a Moratorium to halt
development of big-box retail stores.
the regularly scheduled Tacoma City Council meeting held on
August 30, 2011, Defendants Mello, Fey, Campbell, and Walker
introduced a proposed ordinance not included on the published
Agenda for the meeting: to adopt a city ordinance imposing a
six-month Moratorium, due to “public emergency, ”
on the filing, acceptance, and processing of applications for
land use, building permits, or other development permits
associated with the establishment, location, or permitting of
retail sales establishments with a floor area greater than
65, 000 square feet in size, unless complete applications
were filed with the City prior to the effective date.
Moratorium was denominated as City of Tacoma Ordinance No.
28014. Defendant City Councilmembers Strickland, Walker,
Mello, Fey, Woodards, Campbell, and Boe voted in favor of
Ordinance No. 28014. The U-Turn proposal was removed from the
agenda of the August 30, 2011 City Council Meeting.
notice was given to AMI or to the public prior to August 30,
2011, that the U-Turn proposal would be taken off the agenda
of that day's City Council Meeting or that the Moratorium
would be proposed or adopted.
Moratorium was proposed and adopted in direct response to the
disclosure that Walmart was the intended anchor tenant for
the shopping center AMI was developing at the Elks Property.
the time the Moratorium was enacted, the Tacoma Central
Neighborhood Council (CNC) and other constituents had
expressed opposition to a Walmart store entering the
Pursuant to applicable law, Ordinance No. 28014 could not
take effect until publication in the Tacoma Daily Index, the
City's designated legal publication. Ordinance No. 28014
was published in the Tacoma Daily Index on September 1, 2011,
and took effect upon such publication.
Meanwhile, on August 31, 20111-prior to the effective date of
the Moratorium-the developer filed an application for a
building permit (No. 40000168923), together with related
applications and approvals to construct a new retail store of
approximately 155, 000 square feet on the Property (the
Building Permit Application), with the City of Tacoma.
Building Permit Application covered the entire Property,
including not only the portion on which the Walmart store was
to be constructed, but also portions that AMI intended to
retain and upon which AMI would be constructing improvements.
It included onsite and offsite improvements for roads,
utilities, traffic signals, and access drives. The Walmart
parcel is landlocked, with no frontage or access on any
public street. Pedestrian and vehicular access was only
through the property being retained by AMI. It would not be
possible, physically or legally, to build the Walmart
building without access through the AMI property.
Jeffrey Oliphant was the developer of the Project and led the
team that filed the Building Permit Application. Oliphant
wrote and submitted to the City an AMI check for the Building
Permit Application's fee of $44, 183.67. The City issued
a receipt for the Building Permit Application fee to AMI and
entered the application into the City's permit database
with AMI listed as the applicant.
the time they filed the building permit application, the
developer delivered a SEPA Addendum Application. The City
took the SEPA Addendum Application, but they would not accept
the fee, due to confusion caused by the Moratorium. The ...