Rapczak v. City of Kirkland

1

JESSE and FOREST RAPCZAK, and the marital community thereof, Appellants, v. CITY OF KIRKLAND, a municipal corporation, Respondent.

No. 85626-0-I

Court of Appeals of Washington, Division 1

September 30, 2024

UNPUBLISHED OPINION

BOWMAN, J.

Jesse and Forest Rapczak sought a building permit to construct a new home on their Kirkland waterfront property. As a condition of issuing the permit, the city of Kirkland (City) required the Rapczaks to dedicate a public pedestrian path across their lot. The Rapczaks challenged the City's permit condition under the Land Use Petition Act (LUPA) chapter 36.70C RCW, arguing it amounts to an unconstitutional taking of private property. The trial court denied and dismissed the Rapczaks' LUPA petition with prejudice. Because the City's permit condition is not roughly proportional to the nature and impact of the Rapczaks' development, we reverse and remand for further proceedings.

The Rapczaks live in a single-family home at 315 Lake Avenue West on the Kirkland waterfront. As the picture below shows, to the west of their lot is Lake Washington,^[1] and to the east is a steep hill. Lake Avenue West is a private road that runs north-south on the east side of the waterfront homes and serves several residences, including the Rapczaks. By car there are two dead-end sections of Lake Avenue West-the northern section, which runs between 401 and 411 Lake Avenue West, and the southern section, which runs between 299 Lake Avenue West and the Rapczaks' home at 315 Lake Avenue West, with a "gap" in the road between the two sections. But by foot, the sections are connected by a pedestrian path along the Rapczaks' and their two northern neighbors' driveways.

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As shown in the picture below, from the south, the pedestrian path runs across the Rapczaks' driveway. It then narrows to an almost five-foot-wide compact dirt and gravel trail and ends at a gate, which opens to their northern neighbor's property.

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Members of the public use the pedestrian path, but the deed to the Rapczaks' property does not show a recorded pedestrian easement, and there has been no judicial determination as to a prescriptive easement. Instead, the Rapczaks' property is encumbered by a road and utility easement that created Lake Avenue West and extends north-south along the property in the area of the existing pedestrian path. A 1948 deed for the property describes an easement" '[20] feet wide'" for" 'road purposes, sewer, water pipes, power and light, [and] telephone and drainage ditches,'" and it reserves" 'the right to the use of said easement for [the] benefit of . . . other tracts in the near vicinity.'" A 1952 deed similarly reserves an easement for road and public utility purposes.^[2]

In November 2020, the Rapczaks submitted preliminary plans to the City to build a new home on their property. The plans show that they would demolish their existing house and build a new, larger house, set back further from the water.^[3] The Rapczaks' plans eliminated the existing pedestrian path.

In December 2020, the Rapczaks attended a meeting with City staff to discuss the project. At that meeting, the City informed the Rapczaks that it believed there is a public pedestrian easement across their property, and that they must maintain the pedestrian path as a permit condition under Kirkland Zoning Code (KZC) 105.19. KZC 105.19(1) provides that "the City may require [a building permit] applicant to install pedestrian walkways for use by the general public . . . and dedicate public pedestrian access rights where the walkway is reasonably necessary as a result of the development activity." It then lists circumstances where walkways are reasonably necessary, such as "to provide efficient pedestrian access to an activity center of the City," to shorten pedestrian routes through "unusually long" blocks, or to "connect between . . . dead-end streets" or "[o]ther public pedestrian access walkways." KZC 105.19(1)(b), (d), (e)(i), (e)(iv).

Based on that discussion, the Rapczaks asked the City for a formal decision about its path requirement before they submitted final plans. On March 16, 2021, the City issued a decision, "requiring the dedication of a public pedestrian walkway easement" across the Rapczaks' property under KZC 105.19(1). In its decision, the City explained that Lake Avenue West is a privately owned right-of-way that encumbers the Rapczaks' property, and cited the historic deeds' road and utility easement over the property. The City said that "for most of its life," the easement was "used as a vehicular access road" and "as a pedestrian pathway since at least [1952]."^[4]

The City then found that the Rapczaks' proposed plans constituted "development activity." It applied the criteria under KZC 105.19(1) and determined that the pedestrian dedication is "reasonably necessary" because "[t]he pedestrian path on Lake Avenue West provides [a route for] pedestrian traffic between two shoreline parks," and "provides safe pedestrian access to downtown Kirkland, shopping areas, employment centers and transit." The City found that the path provides a route for pedestrians through a block that is "unusually long" because "Lake Avenue West is approximately 2,700 feet long," and "most Kirkland blocks follow the pre-established street grid measuring 500 feet in length." The City also found that pedestrian access is necessary to connect between dead-end streets where the north and south portions of Lake Avenue West terminate "at [the Rapczaks'] Property." Accordingly, the City concluded that under KZC 105.19(1), "a dedicated public pedestrian walkway will be required as part of [the Rapczaks'] application for a new single-family residence."^[5]

On April 1, 2021, the Rapczaks filed a LUPA petition and a complaint for declaratory relief.^[6] In the LUPA petition, the Rapczaks challenged the City's authority to require the dedication of a public pedestrian walkway. And in the declaratory action, the Rapczaks sought a declaration that there is no public right-of-way over their property. The City counterclaimed, seeking a declaration that there is a prescriptive easement for public pedestrian use across the Rapczaks' property. In June 2021, the Rapczaks and the City agreed to bifurcate the LUPA and declaratory causes of action and stipulated that the court should stay the requests for declaratory judgment until the LUPA cause of action concluded.^[7]

In April 2022, the court held a hearing on the LUPA petition. At the hearing, the Rapczaks argued that the City cannot show the pedestrian path dedication was "reasonably necessary as a direct result of [their] replacement of their existing home" under KZC 105.19.^[8] And they argued the City's permit condition amounted to an unconstitutional taking of private property under Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), and Nollan v. California Coastal Commission, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987).^[9] The City argued that there is a prescriptive easement across the Rapczaks' property because pedestrians had continuously used it since the 1950s. And it contended that because the Rapczaks' new development will eliminate the existing path, the dedication is reasonably necessary.

The trial court found that there were issues of fact about whether a prescriptive easement exists and remanded for factfinding "on the scope and boundaries of the alleged easement through the Rapczak property." The court ordered that once the factfinding is complete, "the matter shall be returned for a decision on this appeal." On remand, the City visited the site and produced a supplemental summary for the record in the LUPA action.

In its January 2023 supplemental summary, the City explained that the pedestrian path across the Rapczaks' property narrows at the northern portion to about five feet wide. And, based on a review of "dozens of emails and sworn statements," it asserted that "the public has used this trail openly and without permission for decades." As a result, the City determined that "there is sufficient evidence in the LUPA file to support a finding that the public had a prescriptive easement for a walking path across the [Rapczaks'] property." So, the City concluded that the Rapczaks should maintain the "decades-old pedestrian pathway across the property," and record "a [five]-foot-wide pedestrian pathway easement across the property" as a condition of the Rapczaks' redevelopment.

The Rapczaks responded that the City "wholly failed to prove the existence of a prescriptive easement" and reminded the court that the issue of prescriptive easement was not before it. They argued that the court "must assume that none exists for purposes of its LUPA ruling" and find that the permit condition is an unconstitutional taking.^[10]

In May 2023, the trial court held a second hearing on the Rapczaks' LUPA petition. The Rapczaks again argued that the City has no authority to require them to dedicate a pedestrian path because their proposed development does not warrant a new public easement under KZC 105.19(1), RCW 82.02.020, or Dolan and Nollan. And the City again argued that the dedication is reasonably necessary under KZC 105.19(1) because the development will eliminate an existing path that connects two dead-end streets on an unusually long block between two parks. The City also argued there is substantial evidence in the record to support finding that there is a prescriptive pedestrian easement.

In July 2023, the court entered an "Order on LUPA Appeal," concluding that the City's "requirement for dedication of a pedestrian easement across the [Rapczaks'] Property pursuant to [KZC] 105.19(1) . . . is supported by law...