Galvis v. State, Dept. of Transp.

167 P.3d 584, 140 Wash. App. 693
CourtCourt of Appeals of Washington
DecidedSeptember 11, 2007
Docket34604-4-II
StatusPublished
Cited by7 cases

This text of 167 P.3d 584 (Galvis v. State, Dept. of Transp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Galvis v. State, Dept. of Transp., 167 P.3d 584, 140 Wash. App. 693 (Wash. Ct. App. 2007).

Opinion

167 P.3d 584 (2007)

Sandra M. GALVIS, a divorced woman; and Alexander Moncada, a single man, d/b/a La Popular Cash & Carry Market, L.L.C.; James R. Masewicz and Virginia F. Masewicz, husband and wife; and Ash Resources, L.L.C., Respondents/Cross Appellants,
v.
STATE of Washington, DEPARTMENT OF TRANSPORTATION, Appellant/Cross Respondent.

No. 34604-4-II.

Court of Appeals of Washington, Division 2.

September 11, 2007.

*586 Douglas D. Shaftel, Office of the Atty. General, Olympia, WA, for Appellant/Cross-Respondent.

Robert A. Wright, Faubion Johnson & Reeder, Lakewood, WA, Charles Joseph Sinnitt, Attorney at Law, Tacoma, WA, for Respondent/Cross-Appellant.

HOUGHTON, C.J.

¶ 1 The State Department of Transportation (DOT) appeals just compensation and attorney fee awards to property owners who have certain access connections to State Route 7 (SR 7). The property owners cross-appeal a trial court decision upholding the constitutionality of the Highway Access Management Act (HAMA), chapter 47.50 RCW. We agree with the trial court that the HAMA is constitutional. But because substantial evidence supports the Reviewing Officer's finding that the property owners will have reasonable access to their properties after implementation of the DOT's safety improvement project, we reverse the superior court's compensation and attorney fee awards.

FACTS

¶ 2 In 2003, the DOT proposed a safety improvement project along a 5-mile segment of SR 7 from 112th Street to 188th Street in Parkland. The project aimed to reduce the number of accidents by constructing sidewalks and drainage swales, eliminating several access connection points under the HAMA. Sandra Galvis and her son Alexander Moncada (collectively, Galvis), James and Virginia Masewicz, and Ash Resources, L.L.C. own property[1] with access connections to SR 7 that the DOT intends to modify as part of the project.

¶ 3 Galvis owns and operates a retail grocery store, La Popular Cash & Carry Market, located just south of 112th Street. Galvis purchased the property in 2002. Previous owners built the store around 1950 and used the building for commercial purposes, allowing up to six customers to angle park in front of it. No curbs or structures define the access point to the building, and vehicles enter and leave the property along the entire SR 7 frontage. Customers and suppliers enter the property only from SR 7, and their vehicles encroach on the State's right of way when parked.

¶ 4 The Masewiczes own property abutting the Galvis grocery store. The Masewicz property includes a building with five commercial and four residential tenants. The Masewiczes acquired the property around 1989.

¶ 5 Constructed around 1952, the Masewiczes' building covers the entire street front of the property. Previous owners and their customers parked in front of the building, encroaching onto SR 7. Angled parking spots line the building's front. The tenants, customers, and suppliers can enter the property only from SR 7, and vehicles have access along the entire SR 7 frontage. The Masewiczes currently have an informal arrangement with a neighboring property owner for additional parking spaces.

¶ 6 Ash Resources, owned by Glenn and Mary Ash, acquired a 7.5-acre parcel on Pacific Avenue in 1993 and has been leasing it to G & L Bark & Supply since 1996. G & L Bark sells landscape materials, such as beauty bark, top soil, and gravel, to residential and commercial customers.

¶ 7 The Ash property abuts SR 7 and currently allows vehicle access through two 25-foot-wide driveways not defined by any structures. Suppliers and customers access the property in various types of vehicles *587 including large semi-trucks, dump trucks, and trailers. The suppliers haul an average of two to three semi-loads a day and their dump trucks can be up to 50-feet long. Customers using the property average 50 to 150 per day.

¶ 8 In fall 2003, the DOT sent the property owners notices about its SR 7 safety improvement project. The notices explained the purposes and methods of the project and informed the property owners that the proposed improvements would eliminate their encroachments on SR 7.[2]

¶ 9 The DOT plan allowed some of the property owners to use the State's right of way to access their property by leaving spaces open from the cement concrete driveway approach and sidewalk that the DOT intended to build in front of their properties. But the DOT's installation of the driveway approach and sidewalk eliminated the angled parking stalls encroaching on SR 7, leaving two parallel parking spots in front of the Galvis grocery store, three parallel parking spots in front of the Masewicz building, and one 50-foot-wide driveway to the Ash property. The notices explained that the property owners had the right to request an adjudicative proceeding to contest its decision and that the decision would become final if the owners did not file a written request for a hearing within 30 days.

¶ 10 The property owners requested an adjudicative proceeding to contest the DOT's proposal. After hearing testimony from the property owners, traffic engineers, and appraisers, an administrative law judge (ALJ) concluded in each case that the DOT's proposal provided reasonable access to the properties. The property owners sought review of the ALJ's findings of fact and conclusions of law, and the Reviewing Officer generally upheld the ALJ's decision with minor modifications, not relevant here. In all instances, the Reviewing Officer found reasonable access existed under the DOT's proposed SR 7 changes.

¶ 11 The property owners filed a petition for review in the superior court and the court consolidated the three cases. The property owners contended, in part, that the HAMA facially violates article I, section 16 of the Washington Constitution by allowing local governments to take property rights without just compensation. The DOT moved for partial summary judgment on this issue. On September 13, 2005, the superior court granted the DOT's partial summary judgment motion, ruling that chapter 47.50 RCW does not violate the state constitution.

¶ 12 On November 28, 2005, the property owners raised their remaining arguments before a different superior court judge. In that hearing, they claimed that the DOT's proposal amounted to an unconstitutional taking as applied to them and that the evidence did not support the reasonableness of the DOT's proposal.

The trial court found that the ALJ's and Reviewing Officer's findings established that the DOT had denied the property owners reasonable access to their properties. The trial court also found that a jury, not the ALJ or the Reviewing Officer, should decide the issues of just compensation and reasonable access. The trial court awarded attorney fees to the Masewiczes ($4,477.97) and to Ash Resources ($5,534.98).

¶ 14 On April 17, 2006, the trial court denied the DOT's motion for reconsideration and remanded the case to the DOT. The trial court also clarified its ruling, explaining that it did not overrule or modify the September 13, 2005 finding the HAMA facially constitutional.

¶ 15 The DOT appeals from the judgment and award of attorney fees to the property owners. The Masewiczes and Ash Resources cross-appeal the September 13, 2005 order finding the HAMA facially constitutional.

ANALYSIS

¶ 16 Both the direct and cross appeals challenge the superior court's rulings on summary judgment. We review orders granting summary judgment de novo. Hisle *588 v. Todd Pac. Shipyards Corp.,

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Cite This Page — Counsel Stack

Bluebook (online)
167 P.3d 584, 140 Wash. App. 693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galvis-v-state-dept-of-transp-washctapp-2007.