423 P.3d 223
Wash.2018Background
- Maytown purchased land from the Port of Tacoma in 2009 that carried a 2005 Thurston County 20‑year special use mine permit; environmental groups opposed mining near sensitive prairie-oak-wetland habitat.
- Disputes arose over missed pre‑mining water‑testing deadlines and interpretation of permit conditions (notably conditions 6A and 6C), leading the County Resource Stewardship Department to require formal amendments, SEPA review, and a "letter to proceed."
- The Department delayed approval, classified Maytown’s proposed amendments as "substantial," required a hearing examiner process and limited SEPA review, and the Board later ordered (then the superior court reversed) a new critical areas study — all contributing to approximately two years of delay and increased costs.
- Maytown and the Port sued the County for tortious interference (contract and business expectancy), negligent misrepresentation, breach of special duty (express assurances), and a § 1983 substantive due process violation; a jury awarded $8M to the Port and $4M to Maytown and found a § 1983 violation.
- On appeal the Court of Appeals affirmed liability and remanded for prelitigation administrative‑forum attorney fees; the Washington Supreme Court granted review to decide four issues including LUPA exhaustion, sufficiency of § 1983 evidence, recoverability of prelitigation administrative attorney fees, and appellate fee procedure.
Issues
| Issue | Plaintiff's Argument (Maytown/Port) | Defendant's Argument (Thurston County) | Held |
|---|---|---|---|
| Whether LUPA’s administrative‑exhaustion rule (RCW 36.70C.030) bars tort claims arising during land‑use decisionmaking | LUPA applies only to challenges to land‑use determinations; tort claims for bad‑faith or intentional interference are outside LUPA and fall within the damages exception | Allowing damages claims would let plaintiffs circumvent LUPA and its exhaustion framework; damages exception should be construed narrowly | LUPA does not bar tort claims of the kind asserted here; the exhaustion rule targets land‑use determinations, not tortious acts during the process |
| Sufficiency of evidence for § 1983 substantive‑due‑process claim | Evidence showed County officials (commissioners + staff) acted to stall/obstruct mining, made assurances, and created biased procedures that deprived Maytown of a protected property interest | Maytown lacked a protected property interest (permit conditions unmet) and government conduct did not "shock the conscience" or meet § 1983 standard | Evidence was sufficient: (1) permits and county letters could support a protected property interest; (2) record (including commissioner bias and procedural interference) was enough under Del Monte Dunes and Washington precedents to submit § 1983 to the jury |
| Whether prelitigation administrative‑forum attorney fees are recoverable as damages for tortious interference | Fees incurred trying to perfect the permit are direct damages caused by County’s intentional misuse of process and should be recoverable | American Rule bars recovery of attorney fees as damages absent statute/contract/equity; malicious prosecution/abuse‑of‑process doctrines are narrow and do not support fees for tortious interference | Reversed: American Rule generally bars prelitigation administrative attorney fees as damages for tortious interference; bad‑faith exception does not extend to prelitigation administrative fees |
| Whether appellate fee request under RAP 18.1(b) had to be in a separate brief section | Maytown’s fee request in two sentences (with legal basis) sufficed; RAP 18.1(b) should not invalidate fee awards when substance and notice are present | RAP 18.1(b) requires a distinct section of the opening brief devoted to the fee request; form here was defective | Affirmed: RAP 18.1(b) applies to § 1988 requests and the Court of Appeals did not abuse discretion in concluding Maytown’s brief complied (request was in the body and provided basis) |
Key Cases Cited
- Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909 (Wash. 2013) (LUPA’s damages exception applies to certain compensation claims)
- Durland v. San Juan County, 182 Wn.2d 55 (Wash. 2015) (permits and vested‑interest analysis for due‑process property rights)
- City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (U.S. 1999) (land‑use officials’ conduct can support § 1983 claim; jury submission appropriate)
- County of Sacramento v. Lewis, 523 U.S. 833 (U.S. 1998) ("shocks the conscience" standard for substantive due process)
- Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (U.S. 2005) (distinguishing substantive due process tests from takings analysis)
- Pleas v. City of Seattle, 112 Wn.2d 794 (Wash. 1989) (discussion of prelitigation fees in land‑use context; did not decide fee recoverability issue)