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.
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.
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
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.
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
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.
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
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
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
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
. . . .
(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,
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.
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.
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
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.
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
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.
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.
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.
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.
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"
Legal Description (abbreviated form: i.e. lot, blk., plat or
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
CP at 602. The first page of the development agreement
contains the following block:
Grantors: (1) PRINTING PRESS PROPERTIES, LLC
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
Assessor's Tax Parcel ID Nos.: 191331-44004
CP at 603. Exhibit A attached to the development agreement
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
CP at 612 (emphasis added). The property to the west of the
Yakima limits is the wedge. The body of the agreement
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 ...