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City of Union Gap v. Printing Press Properties, L.L.C.

Court of Appeals of Washington, Division 3

January 25, 2018

CITY OF UNION GAP, a municipal corporation of the State of Washington, Appellant,
PRINTING PRESS PROPERTIES, L.L.C., a Limited Liability Corporation registered and doing business in Washington State, Respondent.

          FEARING, C.J.

         Plaintiff city of Union Gap and defendant Printing Press Properties, LLC, (Printing Press) scrimmage as to whether Printing Press may cut a curb and gain direct access to a major arterial from its land. The trial court granted Printing Press summary judgment and denied Union Gap an injunction to prohibit the access. Because Printing Press signed a development agreement granting Union Gap the prerogative to deny direct access to the arterial, we reverse and grant judgment to Union Gap.


         This lawsuit concerns Printing Press' access to Valley Mall Boulevard, a new arterial, whose centerline often serves as the boundary between the cities of Yakima and Union Gap. Union Gap, the original Yakima City, lies to the south of Yakima. The boulevard runs east-west and connects Interstate 82 and the Yakima Air Terminal, Yakima's principal airport. Union Gap designed, constructed, and maintains the boulevard.

         Printing Press owns commercial property abutting Valley Mall Boulevard and adjacent to the boulevard's intersection with Longfibre Road. All of Printing Press' land now lies within the Yakima City limits and north of the boulevard. Railroad tracks run north and south and lay directly east of Printing Press' land. As part of the boulevard improvement, Union Gap constructed a bridge over the tracks.

         Printing Press seeks to build direct access from its property to Valley Mall Boulevard. It labels this access as a "driveway." The city of Union Gap, citing safety concerns, denied Printing Press' application to create the driveway. Instead of appealing Union Gap's denial of access, Printing Press withdrew its application and submitted the same proposal to the city of Yakima, which proposal Yakima approved. With this suit, Union Gap seeks to permanently enjoin Printing Press from cutting the boulevard curb such that a constructed driveway permits access on to the boulevard.

         Before construction of Valley Mall Boulevard, Longfibre Road provided ingress and egress to Printing Press' land via Washington Avenue, a major east-west arterial to the north of the boulevard. Printing Press' land abuts Longfibre Road. Longfibre Road still connects Printing Press' land to Washington Avenue and now connects the land to the boulevard. Printing Press assigned some of its land to Lowe's Home Improvement for a store. Printing Press and Lowe's seek direct access to the boulevard.

         Before commencing construction for Valley Mall Boulevard, Union Gap adopted city Ordinance 2123 to govern use of the future boulevard. The ordinance intended to provide coordinated standards for permitting access to the boulevard and to confirm that the access rights of abutting landowners are subordinate to the public's right and interest in a safe and efficient arterial system. Union Gap Municipal Code (UGMC) 9.34.010. Union Gap Ordinance 2123 designated the boulevard as a "controlled access arterial" and permits driveway access to the boulevard only "when other alternatives such as an abutting public street or internal access road are not possible for access." UGMC 9.34.060(a).

         Union Gap possesses authority to condemn property outside its jurisdiction. RCW 8.12.030; In re Petition of City of Long Beach, 119 Wn.App. 628, 634, 82 P.3d 259 (2004). Nevertheless, to anticipatorily quell Yakima residents' concerns about Union Gap's control along Valley Mall Boulevard on Yakima's side of the road, Union Gap and Yakima, on March 8, 2001, entered an interlocal agreement. The two had planned the boulevard since the late 1990s. The agreement in part reads:

This Interlocal Agreement is made by and between the CITY OF YAKIMA, a Washington municipal corporation, hereinafter "Yakima, " and the CITY OF UNION GAP, a Washington municipal corporation, hereinafter "Union Gap, " each being duly authorized and acting under the laws of the State of Washington, pursuant to authority vested in each by the Interlocal Cooperation Act, RCW Chapter 39.34, as follows:
1. Union Gap is involved in the development of a project known as the "Valley Mall Boulevard Extension, " which is an effort to purchase right of way and construct an extension of Valley Mall Boulevard from its present location near the I-82 Interchange in Union Gap to the Yakima Air Terminal, some distance to the West. Yakima supports this project and has allocated $590, 000.00 of federal highway safety funds for the project. The Valley Mall Boulevard project is a cooperative venture between the Washington State Department of Transportation, the City of Yakima, the City of Union Gap, and Yakima County. The project is of major significance to the entire region as it would provide an important direct link between the air terminal and the I-82 freeway.
2. Union Gap Ordinance No. 2271 authorized the Union Gap City Attorney to initiate condemnation proceedings for acquisition of the necessary right of way in Yakima County Superior Court Cause No. 01-2-00041-1.
3. In the course of the hearing required for adjudication of use and necessity of this project, some land owners have argued that the Property sought to be condemned is located within the boundaries of the City of Yakima and not within the boundaries of the City of Union Gap. . . .
4. The parties hereto are authorized by RCW 39.34.030 to exercise their powers of condemnation jointly, and for that purpose, the City of Yakima herewith assigns to the City of Union Gap all of its authority and attendant ability to condemn the Property for the Valley Mall Boulevard Project, as described in Exhibit A. For these purposes, the City of Union Gap may act on behalf of the City of Yakima, in its place and stead, in the negotiation for, condemnation and acquisition of the Property located within the boundaries of the City of Yakima.
5. As partial consideration for this joint undertaking, Union Gap shall protect, defend, indemnify, and hold Yakima harmless from and against any and all claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and costs and expenses (including attorney's fees and disbursements), which accrue to or are incurred by Yakima on or after execution of this Interlocal Agreement and arise directly or indirectly from or out of, relate to, or in any way are connected with
(1) The eminent domain proceedings or any related actions contemplated by this Interlocal Agreement.
(2) Challenges concerning the legal authority to enter into or implement this lnterlocal Agreement or the ordinance authorizing condemnation.
. . . .
(5) The design, construction, reconstruction, installation, repair, maintenance, operation, alteration, or modification of the Valley Mall Boulevard street and transportation improvements (or other public improvements) on the property . . . .
. . . .
7. Yakima and Union Gap agree that this Interlocal Agreement shall have an indefinite duration and cannot be terminated unless both parties consent in writing to such termination.

Clerk's Papers (CP) at 249-51. Yakima passed and adopted the interlocal agreement as a city ordinance on March 6, 2001.

         In a declaration in support of Printing Press' summary judgment motion, Yakima City Attorney Jeff Cutter expounded on Yakima's view of the agreement. Although Cutter interpreted the agreement to authorize Union Gap to act as Yakima's agent, he declared that the:

Interlocal Agreement simply authorized Union Gap to act on behalf of Yakima with respect to the condemnation of properties located within Yakima jurisdiction. Union Gap acted as "agent" for City of Yakima. It did not change municipal boundaries, relinquish jurisdictional authority or otherwise modify land use authority with respect to properties lying within the City of Yakima.

CP at 1046. Jeff Cutter challenged Union Gap's claim that Yakima assigned Union Gap the former's "regulatory authority to regulate the Boulevard." CP at 963.

         To facilitate the Valley Mall Boulevard project after signing the interlocal agreement, Union Gap procured the needed land through a combination of voluntary purchases and condemnation proceedings. Around 2000 and before signing the interlocal agreement, Union Gap contacted Printing Press to acquire a strip of the southern portion of its land to lengthen the boulevard to the west. Although some Yakima residents contested Union Gap's authority to condemn land located in Yakima, Printing Press did not. Printing Press' land then rested in both Yakima and Union Gap.

         During negotiations for the purchase of Printing Press' land, Union Gap paid Printing Press $750 to conduct an appraisal of the needed 95, 377 square feet of land. Printing Press' appraisal acknowledged that immediate access to its land "is by Longfibre Road which is a satisfactory two lane rural road, " and that "[w]hen Valley Mall Boulevard is completed, immediate access [to the boulevard] may not be enhanced due [to] the rise of [a] bridge over the railroad tracks." CP at 324. Printing Press denies that this appraisal language contemplated Union Gap's acquisition of Printing Press' access rights to the boulevard.

         Printing Press' appraisal valued the portion of 95, 377 square feet of property to be taken by Union Gap for Valley Mall Boulevard at $125, 600. Union Gap ultimately purchased the plot from Printing Press for $45, 000. According to Printing Press, it donated the difference between the purchase price and the value of the property to the boulevard project. As part of the transfer, Printing Press required Union Gap to sign a "Donee Acknowledgment, " that recognized that Union Gap acquired all of Printing Press' "right, title or interest in the property by quitclaim deed." CP at 239.

          On March 19, 2001, Printing Press executed a quitclaim deed to a narrow strip of land for use as part of Valley Mall Boulevard in favor of Union Gap. The deed read, in relevant part:

Valley Mall Boulevard Extension
The Grantor, Printing Press Properties, LLC, a Washington Limited Liability Company, for and in consideration of the sum of TEN and No/100 -($10.00)-Dollars, and other valuable consideration, conveys and quitclaims to the City of Union Gap, a Municipal Corporation of the State of Washington, the following described real estate, and any after acquired interest therein, situated in Yakima County, in the State of Washington, to the same extent and purpose as if the rights herein granted had been- acquired under Eminent Domain statutes of the State of Washington.

CP at 394. The transfer included only a small portion of Printing Press' parcel. Printing Press reserved no easement or other interest in the transferred land. Nevertheless, Jay Sentz, managing member of Printing Press, declares that the deed did not transfer access rights to the boulevard. He characterizes the deed as only transferring a right of way to Union Gap. UGMC 9.34.030(b) recognizes that "every owner of property which abuts a controlled access arterial has the right to reasonable access to that roadway." Printing Press continued to own land immediately abutting the purchased land and north of Valley Mall Boulevard.

         The city of Union Gap commenced construction of Valley Mall Boulevard following the acquisition of all needed land, and Union Gap remained the lead agency on all project phases. The total cost of the boulevard project was $21.5 million. Union Gap contributed seven percent of the total project cost. Most funding came from the federal government. The city of Yakima contends it served as the certification acceptance agency for the project and that its duties as this agency included review and approval of all project designs, plans, specifications, utility and railroad agreements, consulting and engineering agreements, construction estimates, award and execution of construction contracts, and construction administration. Union Gap claims it entered all agreements regarding the design and construction of the arterial road.

         Valley Mall Boulevard now constitutes a completed four-lane "Intermodal Connector" providing vital access between Interstate 82, lying east of Union Gap and Yakima, and the commercial, industrial and agricultural businesses to the west of the cities of Yakima and Union Gap. The boulevard extends 3.3 miles with a half mile section of its centerline aligned with the boundary between Union Gap and Yakima. The speed limit on the boulevard is 40 m.p.h. Union Gap pays all bills for street lighting. Union Gap performs boulevard striping, sweeping, maintenance, vegetation control, and snow and ice control. The Union Gap Police Department responds to calls for emergencies on the boulevard.

         In 2006, the city of Union Gap approached Printing Press Properties to participate in a partnership to improve the Valley Mall Boulevard and Longfibre Road intersection. The two entities, along with Clary Properties, LLC, an owner of land to the west of Longfibre Road, reached a development agreement, pursuant to RCW 36.70B.170, to recondition the intersection. Before the entry of the agreement, a wedge-shaped portion of Printing Press' land rested within the municipal boundaries of the city of Union Gap, with the remaining larger portion of Printing Press' parcel within the boundaries of the city of Yakima. We refer to the area formerly inside Union Gap limits as "the wedge." We refer to the remaining larger portion as the "eastern portion." Although the boundary between the two cities generally runs east and west, the boundary along Longfibre Road then turned and ran north and south. The wedge lies immediately to the east of Longfibre Road. We will refer to all of Printing Press land, in other words, both the wedge and the eastern portion, as the "entire tract." The property constitutes one tax parcel. Other than the wedge formerly resting in Union Gap, no reason existed to distinguish the wedge from the eastern portion of the land. Exhibit B, attached to the development agreement, assists in identifying and understanding the layout of Printing Press' land, Valley Mall Boulevard, Longfibre Road, and the Clary land. We attach the exhibit to this opinion. We also attach two overhead photographs of the area.

         Yakima and Union Gap agreed to adjust the municipal boundaries so that all of the Printing Press' property would sit within the boundaries of the city of Yakima. In other words, Yakima, with the permission of Union Gap, annexed the wedge. Union Gap and Printing Press agreed to extend Longfibre Road farther south to provide greater access to Printing Press' land and to add utilities in the improved area.

          On February 28, 2008, the city of Union Gap and Printing Press entered a development agreement to consummate the understanding with regard to improvement of the Longfibre Road and Valley Mall Boulevard intersection. A major question on appeal is whether the development agreement covers only the wedge formerly within Union Gap or Printing Press' entire tract. The recording cover sheet for the agreement contains a "legal description, abbreviated form" that reads:

Legal Description (abbreviated form: i.e. lot, blk., plat or S.T.R. quarter/quarter)
SE1/4 SW1/4 SE1/4 S. 31, T 13N, R. 18 EWM
Additional legal is on page ___
Assessor's Property Tax/Parcel Account Number 191331-44004

CP at 602. The first page of the development agreement contains the following block:

Grantee: (1) CITY OF UNION GAP
Abbreviated Legal Description: SE 1/4 SW 1/4 SE 1/4 S31, TI3N, R18 EWM
Complete legal description is attached as Exhibit A to this document.
Assessor's Tax Parcel ID Nos.: 191331-44004

CP at 603. Exhibit A attached to the development agreement reads:

Exhibit "A"
That part of the southeast quarter of the southwest quarter of the southeast quarter of Section 31, Township 13 North, Range 18 East W.M., lying westerly of the city limits of Yakima, Washington.

CP at 612 (emphasis added). The property to the west of the Yakima limits is the wedge. The body of the agreement declares:


A. Whereas, the City of Union Gap, in partnership with the Yakima County Development Association (YCDA), is seeking to facilitate the development of commercial and light industrial-zoned property in the vicinity of Ahtanum ...

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