Keep Kids Safe v. The City of Kirkland

1

KEEP KIDS SAFE, a Washington nonprofit, Appellant, v. THE CITY OF KIRKLAND, a municipal government, acting through the KIRKLAND CITY COUNCIL, a Washington State Public Agency, Defendants, KING COUNTY, a county government, Respondent.

No. 85329-5-I

Court of Appeals of Washington, Division 1

April 1, 2024

UNPUBLISHED OPINION

SMITH C.J.

In 2021, King County implemented Ordinance 19366 and adopted the "Health through Housing" plan, which set out steps for the County to follow when purchasing hotels to use as supportive housing for persons experiencing homelessness. In February 2023, Keep Kids Safe (KKS), a nonprofit made up of Kirkland community members, filed a complaint alleging that the County failed to comply with essential steps in the plan and moved for a preliminary injunction to block the repurposing of a former hotel. The County moved to dismiss and the trial court granted the County's motion and denied KKS's request for a preliminary injunction. On appeal, KKS argues that the ordinance and plan created an implied right of action, that KKS had standing as an injured party, and that the trial court abused its discretion in denying KKS's request for a preliminary injunction. We find these arguments unpersuasive and affirm.

FACTS

Early February 2021, in response to the homelessness crisis exacerbated by COVID-19,^[1] King County adopted Ordinance 19236 (Ordinance).^[2] The Ordinance authorized the County to impose a local sale and use tax to support affordable housing, behavioral health facilities, and other related services. The Ordinance also directed the county executive to develop a "Health Through Housing Implementation Plan" (Plan) to govern spending of those tax proceeds.

The Plan proposed purchasing hotels to repurpose as permanent supportive housing for persons experiencing homelessness. To address the housing crisis and aid those experiencing chronic homelessness, the County planned to acquire 12 sites by the end of 2021. The County's Department of Community and Human Services (DCHS) consulted with local city governments to select sites. By August 2021, the County had already closed on or entered into purchase and sale agreements for nine locations. Only one site was on the east side of Lake Washington.

The Plan assumed that by January 2022, the County would acquire three more sites. It recognized, however, the potential need for further acquisitions after 2021. The Plan detailed an eight-step process that the County had to follow when purchasing any additional properties. The siting process required a partnership with a willing city, consultations with County and city staff, an equity and social justice impact review, and at least one public meeting to incorporate feedback before the County could close on the purchase of an appropriate building. The County Council officially adopted the Plan in December 2021.^[3]

Kirkland La Quinta Inn

Late February 2021, the City of Kirkland informed the County that it would be willing to host a site. A few months later, the County and City began working together to find an appropriate location and eventually decided on a La Quinta Inn. In choosing the La Quinta Inn, as with other sites, the City and County considered its proximity to community resources serving children and families including daycares and schools.

The acquisition proved more complicated than any of the prior locations, as the seller made numerous demands for changes to the purchase and sale agreement (PSA). So, although the County intended to purchase all 12 locations by the end of 2021, the La Quinta PSA was not executed until January 2022. Because the agreement was not finalized until 2022, the Plan's requirements for new acquisitions applied.

While in the process of ironing out the details of the PSA, the County and City reached out to the local community for input and comments. In February 2022 the City announced that the County was conducting due diligence on the La Quinta Property. Later that same month the County and City took part in two separate meetings to answer questions about the property. First, the DCHS director, Kirkland's mayor, and city councilmembers attended a virtual meeting hosted by Eastside Preparatory School, one of the four schools adjacent to the La Quinta Inn. The meeting involved more than 200 virtual attendees. And second, county and city officials attended a regular public meeting of a local community council. The three-hour discussion included a presentation by the DCHS director and two hours of public comments and questions. The County officially closed on the property in March 2022, days after the second meeting.

First Lawsuit

In response to the County's progress on the site, a group of Kirkland parents and community members formed Keep Kids Safe ("KKS"), a non-profit with the purpose of "present[ing] their united concerns about the County's plan for the La Quinta." In March 2022, KKS initiated a lawsuit against King County seeking to block the repurposing of the La Quinta Inn. KKS alleged a violation of the Open Public Meetings Act^[4] (OPMA) and sought declaratory relief. The County moved to dismiss on a number of grounds, including that the OPMA did not apply. The court granted the motion to dismiss without prejudice in April 2022.

Second Lawsuit

In February 2023, KKS initiated a second lawsuit against King County. This time, KKS alleged that the County violated the Ordinance by failing to comply with some of the Plan's siting steps. Three weeks later, KKS also moved for a preliminary injunction to stop "any further actions by the County in furtherance" of the intended use of the La Quinta site. The County again moved to dismiss the complaint, asserting that neither the Ordinance nor the Plan created an implied right of action and that, even if it had, KKS lacked standing. The County presented the same arguments in response to KKS's motion for preliminary injunction.

In April 2023, the court denied KKS's motion for preliminary injunction and granted the County's motion to dismiss.

KKS appeals.

ANALYSIS

Motion to Dismiss

We review an order granting a CR 12(b)(6) motion to dismiss de novo. Jackson v. Quality Loan Serv. Corp., 186 Wn.App. 838, 843, 347 P.3d 487 (2015). Under CR 12(b)(6), a complaint must be dismissed if it fails to "state a claim upon which relief can be granted." Dismissal is appropriate where "the plaintiff cannot prove any set of facts consistent with the complaint that would entitle the plaintiff to relief." Jackson, 186 Wn.App. at 843. We presume all facts alleged in the complaint to be true, but are not required to accept any legal conclusions on appeal. Rodriquez v. Loudeye Corp. 144 Wn.App. 709, 717-18, 189 P.3d 168 (2008).

Here, KKS contends that the County's alleged violations of the Plan provide facts upon which relief can be granted. The County counters that the Ordinance does not create an implied right of action that allows KKS to sue at all. Additionally, the County asserts that even if an implied right of action exists, KKS does not have standing. The Ordinance does not create an implied right of action.

Legislative action may be the foundation of a judicial enforceable claim but only where it creates a private right of action. Bennett v. Hardy, 113 Wn.2d 912, 921, 784 P.2d 1258 (1990). An express right of action exists where the legislative act explicitly provides a private right to sue. P.E.L . v. Premera Blue Cross, 2 Wn.App.460, 117, 540 P.3d 105 (2023). An implied right of action exists where there is no express right but the legislative act implies a private right to sue. Bennett, 113 Wn.2d at 921. We use a three-part test to determine whether to imply a right of action: (1) "whether the plaintiff is within the class for whose 'especial' benefit the statute was enacted," (2) "whether the legislative intent, explicitly or implicitly, supports creating or denying a remedy," and (3) "whether implying a remedy is consistent with the underlying purpose of the legislation." Bennett, 113 Wn.2d at 920-21 (quoting In re WPPS Sec. Litig., 823 F.2d 1349, 1353 (9th Cir. 1987)).

Here, the Ordinance is the legislative act. The Plan, while adopted by Ordinance 19366, was drafted by the county executive. Accordingly, we cannot impute legislative intent to a document that the legislature did not craft.^[5] As KKS fails to establish any of the three Bennett factors, the Ordinance does not create a private right of action.

a. Plaintiff Within Class

" 'We look to the language of the statute to ascertain whether the plaintiff is a member of the protected class.'" Swank v. Valley Christian Sch., 188 Wn.2d 663, 676, 398 P.3d 1108 (2017) (quoting Schooley v. Pinch's Deli Mkt., Inc., 134 Wn.2d 468, 475m 951 P.2d 749 (1998)). A plaintiff does not qualify as a member of a protected class if the statute in question "benefits the general public rather than an identifiable class of persons." Keodalah v. Allstate Ins. Co., 194 Wn.2d 339, 346, 449 P.3d 1040 (2019).

KKS argues that because the language of the Plan requires "consistent cooperation, clear communication and common cause" and the Equity and Social Justice Impact Review considers the positive and negative impacts on people who live and work near a potential site, KKS qualifies as a member of the protected class. The County contends that the Ordinance specifically defines the protected class as those experiencing or at risk of experiencing chronic homelessness and that nothing in the document stretches to cover clients or customers of nearby properties and businesses. As we look to the Ordinance, not the Plan, KKS is not within the protected class.

As the County points out, the Ordinance is explicit in who it intends to benefit: "households...