United States District Court, W.D. Washington, Tacoma
KENMORE MHP LLC, JIM PERKINS, and KENMORE VILLAGE MHO LLC, Plaintiffs/Petitioners,
CITY OF KENMORE, GROWTH MANAGEMENT HEARINGS BOARD, Defendants/Respondents.
ORDER ON PLAINTIFFS' MOTION TO REMAND ONE
J. BRYAN UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on the Plaintiffs' Motion
to Remand One Claim. Dkt. 13. The Court has considered the
pleadings filed regarding the motion and the remaining file.
case arises from the Defendant City of Kenmore's
(“City”) adoption of Ordinance No. 19-0481
(“ordinance”), which is alleged to have created a
ten-year moratorium on redevelopment of five properties
within the City. Dkt. 14. In the pending motion, the
Plaintiffs move to remand their first claim only to Thurston
County, Washington Superior Court. Dkt. 13. For the reasons
provided below, the motion (Dkt. 14) should be granted.
FACTS AND PROCEDURAL HISTORY
Plaintiffs in this case own three of the five properties
effected by the ordinance, which was adopted by the City on
April 15, 2019. Dkt. 14. They claim that the ordinance
functionally “prohibits redevelopment” of their
properties. Id. The Plaintiffs maintain that the
ordinance “destroyed millions of dollars of
value” in the properties and “hijacked”
them for single use. Id.
challenged the adoption of the ordinance under the Growth
Management Act (“GMA”) by filing a petition for
review with the Defendant State of Washington Growth
Management Hearings Board (“State Board”).
Id. After the State Board granted summary judgment
in favor of the City (based on the Plaintiffs' failure to
properly comply with filing and service of process rules) and
denied a motion to amend the petition, the Plaintiffs filed
this case in Thurston County, Washington, Superior Court on
September 27, 2019. Id. and Dkt. 1-2. In the Amended
Complaint, they make the following claims: (1) violation of
the Washington Administrative Procedures Act, RCW 34.05.570
(“APA”) relating to the State Board's
decision to grant summary judgment and deny the motion to
amend the petition (the Plaintiffs fail to designate which
defendants this claim is asserted against. For purposes of
this motion, the Court should construe the Amended Complaint
as asserting the claim against both the State Board and
City), (2) a claim for a declaration under the Washington
Uniform Declaratory Judgment Act, RCW 7.24, et.
seq., that the City's adoption of the ordinance
constituted an unlawful moratorium under RCW 35.63.200, (3)
violation of their substantive due process rights under the
Washington State Constitution against the City, (4) violation
of their rights against uncompensated takings under the
Washington State Constitution against the City, and (5)
violation of their substantive due process rights and their
rights against uncompensated takings under the federal
constitution pursuant to 42 U.S.C. § 1983 against the
City. Dkt. 14. The Plaintiffs seek the following
relief: (1) an order reversing the State Board's
decisions, (2) an order declaring the rights and
responsibilities of the parties “with regard to
Ordinance 19-0481, ” (3) an order declaring Ordinance
19-0481 “to be unconstitutional, ” (4) just
compensation under the Washington Constitution, (5) damages,
and (6) attorneys' fees and costs. Id.
City removed the case on October 24, 2019. Dkt. 1. The City
maintains this Court has federal question jurisdiction under
28 U.S.C. § 1331 due to the federal claims asserted and
supplemental jurisdiction over the state law claims pursuant
to 28 U.S.C. § 1367. Dkt. 1. The Notice of Removal does
not indicate whether the State Board consented to, or joined
in, the removal. Id.
November 13, 2019, the Washington State Attorney
General's office filed a letter, stating that it was
representing the State Board. Dkt. 12. The letter further
The Board is a quasi-judicial body, and as such is generally
not a litigant in the judicial review. We anticipate the
parties who appeared before the Board will continue to
advocate their respective positions in this judicial review.
Although [the undersigned assistant attorney general] ha[s]
entered a notice of appearance, [she does] not foresee
participating in prehearing motions, briefing, or final
argument, unless [her] participation becomes necessary. . .
Therefore, in order to conserve resources, [she asks] that,
instead of serving on [her] all papers as required by court
rules, you simply email the briefs and orders to [her].
next day, the Plaintiffs filed the ...