Lake Forest Park Water District, Appellant vs. City Of Lake Forest Park, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LAKE FOREST PARK WATER 	)
DISTRICT, a municipal corporation, 	) 	No. 73309-5-1
)
Appellant, 	) 	DIVISION ONE
)
v. 	)
) 	UNPUBLISHED OPINION
CITY OF LAKE FOREST PARK, 	)
a municipal corporation, 	)
)
Respondent. 	) 	FILED: April 25,2016
)
CD
o
COO
rj<r
—«—4
5D 	0=?j
ro 	"VI;
en 	^~or
>T)m
3C
crtrnU
5E>°
2rr~"
CO 	D.W
**	
•^"o	
CO 	o~
CO 	3C-<
Leach, 	J. 	— When a 	city vacates a 	right-of-way, title transfers to the
abutting property owners. 	Here, the City of Lake Forest Park (City) passed an
ordinance that purported to vacate the right-of-way for yet unopened streets and
retain title for the City. 	The parties agree the portion of the ordinance retaining
title is void. 	The ordinance's severability clause does not preserve the vacation
provision because retention of title was an integral part of the entire ordinance.
Its underlying purpose and legislative history show that the City would not have
passed the ordinance had the City not 	retained title. The trial court properly
granted summary judgment.
FACTS
Lake 	Forest 	Park 	Ordinance 	398 	vacated 	portions 	of 	several 	never
opened streets within the 1912 era Lake Forest Park Plat. 	The ordinance also

NO. 73309-5-1 / 2
purported to retain the City's title to the vacated right-of-way contrary to RCW
35.79.040. 	This statute provides that the ownership of a vacated street belongs
to the abutting landowners up to the center line of the vacated street. Lake Forest
Park Water District (Water District) owns several parcels of land within the Lake
Forest Park Plat that abut the vacated property the City sought to retain.
In 2014, the Water District filed this lawsuit to quiet title to the center line
of the vacated streets that abutted its property. 	The Water District based its
claim of title both on Ordinance 398 and its claims of adverse possession. 	The
Water 	District 	requested 	summary 	judgment 	declaring 	that 	when 	adopted,
Ordinance 398 vested in it fee title to the centerline of the vacated streets. 	The
City responded with a request for summary judgment declaring Ordinance 398
invalid from the date adopted.
The trial 	court granted partial summary judgment to the City, 	finding
Ordinance 398 invalid in its entirety, but reserved for trial the Water District's
claims of adverse possession. 	At the District's request, the trial court later
dismissed 	its remaining claims against the City, 	making the partial summary
judgment final. 	The Water District appeals.

NO. 73309-5-1 / 3
ANALYSIS
The parties agree that RCW 35.79.040 prevents the City from retaining
title to the 	right-of-way.1 	They disagree about the 	validity of the 	ordinance
provision purporting to vacate the right-of-way. 	The Water District argues that
Ordinance 398's severability clause2 preserves as valid legislation the remaining
portion of the ordinance that vacates the right-of-way. 	The City contends that the
entire 	ordinance was void 	when 	adopted 	because the 	City would 	not 	have
adopted it if it could not retain title to the right-of-way.
While a 	severability clause generally indicates that each portion of an
ordinance 	has independent validity, this is 	not true if the voided 	part of the
ordinance is so intertwined and interrelated to the valid portion that it cannot be
separated 	without 	also 	destroying 	the 	legislative 	intent.3 	In this 	case, 	the
presumption created by the severability clause fails. 	A court must construe an
ordinance in accord with its purpose.
A court discerns the meaning of a statute "from all that the Legislature has
said in the statute and related statutes which disclose legislative intent about the
1 RCW 35.79.040 provides, "If any street or alley in any city or town is
vacated by the city or town council, the property within the limits so vacated shall
belong to the abutting property owners, one half to each." (Emphasis added.)
2 "If any part or portion of this Ordinance is declared invalid for any reason,
such declaration of invalidity shall not affect any remaining portions."
3 6 Eugene McQuillin, The Laws of Municipal Corporations § 20:71, at
304 (3d ed. 2007).
-3-

NO. 73309-5-1 / 4
provision in question."4 	Here, we ask if Ordinance 398 functions in a manner
consistent with the intent of the City Council of Lake Forest Park (City Council)
when passing it without the retention of title provision. 	In other words, would the
City Council 	have enacted the contested 	provision without the invalid one?5
Here, the City clearly would not have done so.
The City Council adopted Ordinance 398 primarily to protect a watershed
area from 	development. 	To do this, it determined that 	it needed to retain
ownership in the right-of-way. 	The City Council's minutes from April, May, and
July reflect this intent.
In 	April 	1988, the 	City 	Council 	expressed 	its desire 	"to retain 	the
undeveloped status of the canyon/watershed area." 	The April 20, 1988, City
Council minutes state,
At 	the 	request 	of 	the 	Mayor, 	Mr. 	Evans 	will 	identify 	some
appropriate steps to accomplish the desire of the Council to retain
the 	undeveloped 	status 	of 	the 	canyon/watershed 	area. 	Mr.
Loschen asked what steps could be taken tonight to legally deny
access 	through the 	City 	right-of-way to develop 	property. 	Mr.
Evans suggested a motion to direct drafting a resolution to propose
the vacation of the right-of-way. 	Mr. Loschen pointed out that with
vacation of the riqht-of-wav. the property reverts to the property
owners and the City would then have no control over the land and
he wants to know, at this time, what needs to be done to establish
intent. 	Mr. 	Evans 	pointed 	out 	some 	legal 	concerns 	with
establishing 	Open 	Space zoning of private land. 	Mr. 	Loschen
4 Dep't of Ecology v. Campbell & Gwinn. LLC 146 Wn.2d 1, 11, 43 P.3d
4 (2002).
5 See 6 McQuillin, § 20:71, at 302-03.
-4-

NO. 73309-5-1 / 5
moved to propose a resolution that the Watershed/Canyon area be
used for a natural park with the present easements retained. 	The
motion died for lack of a second. 	Mr. Loschen stated that he wants
to get something on the 	record and 	moved that a 	resolution be
prepared proposing that the canyon right-of-way, N.E. 184th Street,
be used exclusively for public recreation and the City Attorney be
instructed to prepare alternative proposals for designation for that
property. 	Mr. Reed 	seconded the motion. 	Mr. Baldwin spoke
against this motion because it refers to using this property only for
public recreation. 	The 	question was called for and 	the 	motion
passed with six aye votes and one nay vote by Mr. Baldwin.
(Emphasis added.)
In 	response 	to 	the 	Council 	and 	Mayor's 	directive, 	the 	city attorney
submitted a memorandum dated April 27, 1988, strongly recommending the City
consider vacating the right-of-way to accomplish its task:
(1) 	The City has a legal right to vacate the roadway, regardless
of opposition, and this would prevent the dedicated area from ever
being used as access; [and]
(2) 	Vacation is much safer, legally, and does not expose the
City to risks of lawsuit for damages for the loss of use.
In 	May 1988, 	the 	City 	Council again 	expressed 	its goal 	to 	prohibit
development in the area:
The City Attorney has recommended vacation of the street right-of-
way on 	N.E. 184th St. 	running through 	the 	watershed 	area, to
accomplish the Council's goal of prohibiting development in that
area. 	Mr. 	MacGilvra 	was 	concerned 	that 	this 	vacation 	may
"landlock" some parcels of property and create later problems. 	Mr.
Evans said that landowners could then resort to a private right of
condemnation to surrounding property owners for purposes of an
easement for access. 	Mr. Loschen said he feels eager to get this
land 	designated 	in some way and that property owners do not
seem interested in acguiring this land through a vacation but do
seem to favor preserving the creek area pretty much as it is now.
Mr. 	Baldwin expressed his desire for the Council to consider all

NO. 73309-5-1 / 6
alternatives to 	obtain 	our 	objective and 	he 	is concerned 	about
access that might be obtained via easements that would have to be
left in place after vacation. Mr. MacGilvra noted that as long as this
right-of-wav 	is 	not 	vacated, 	property 	owners 	could 	develop 	it
themselves for access to their property. 	Mr. Evans advised that the
vacation 	statute does 	provide for 	the 	City 	to 	retain 	title 	of the
vacated right-of-wav property. 	Responding to a question from Mr.
Loschen, Mr. Evans advised that the property could be zoned as
open 	space 	after vacation. 	He 	also 	recommended 	having 	no
unzoned property in the City. 	Water District No. 83 Superintendent
Kenneth Chalmers asked for clarification of the parcel of land being
discussed and said that because of restrictions now being placed
on the water district regarding water quality, the watershed area is
going to reguire more protection in the future. 	Mr. Reed moved and
Mr. Ofstad seconded a motion that a resolution be prepared for the
vacation of the undeveloped right-of-way along N.E. 184th St. with
title retained by the City. 	The motion passed unanimously.
(Emphasis added.)
Resolution No. 391 states,
WHEREAS, the 	City Council has determined 	it is in the 	public
interest to vacate that certain property . . . with title to be retained in
the City: and WHEREAS, the Council does find that ownership,
use, maintenance, and control of the said property, after vacation,
should 	remain 	with 	the 	City. . . , the 	Council 	may 	consider 	an
ordinance 	effecting 	the 	vacation 	proposed 	by 	this 	resolution
provided that such ordinance shall specifically establish that title to
the property vacated shall be retained in the City of Lake Forest
Park.
(Emphasis added.)
The City adopted Ordinance 398 "in conjunction with Resolution Number
391." 	The recitals prefaced by the resolution's "whereas" clause show the
Council's collective intent that maintaining ownership was integral to their action.6
e See N. State Constr. Co. v. Robbins, 76 Wn.2d 357, 365, 457 P.2d 187
(1969) (recitals are indicative "of the state of mind of the parties").

NO. 73309-5-1 / 7
The documents and the Council's minutes clearly establish that the City intended
with the ordinance to maintain title. 	The Council would not have adopted the
ordinance without retaining title in the right-of-way.
Citing State v. Anderson,7 the Water District argues that its ownership
would in fact accomplish the City's desire to preserve the area. 	This argument
necessarily fails because property owned by others abuts the contested right-of-
way. 	The record does not show that these owners have made any commitment
to preserve the watershed.
The Water District's argument that its title to the right-of-way vested upon
the City's enactment of the ordinance also fails. 	This court applies the general
rules 	of statutory construction to ordinances.8 	Under these 	rules, 	an 	invalid
statute is a nullity and "as inoperative as if it had never been passed."9 	This
means the invalidity of a statute leaves the law "as it stood prior to the enactment
of the invalid statute."10 	Because Ordinance 398 was invalid, title to the right-of-
7 81 Wn.2d 234, 236, 501 P.2d 184 (1972).
8 Ford Motor Co. v. City of Seattle. 160 Wn.2d 32, 41, 	156 P.3d 185
(2007) ("Municipal ordinances, such as the ordinances at issue here, are local
statutes 	that 	are 	to 	be 	construed 	according 	to 	the 	rules 	of 	statutory
construction.").
9 Boeing Co. v. State. 74 Wn.2d 82, 88-89, 442 P.2d 970 (1968) (citing
State ex rel. Evans v. Bhd. of Friends, 41 Wn.2d 133, 247 P.2d 787 (1952)).
10 Boeing, 74 Wn.2d at 89 (citing 82 C.J.S. Statutes § 75, at 132 (1953);
16 Am. Jur. 2d Constitutional Law § 177, at 405 (1964)).
-7-

NO. 73309-5-1 / 8
way stands as ifthe ordinance had never been adopted. 	Thus, no title passed to
the Water District.
CONCLUSION
We affirm the trial court's decision dismissing the Water District's quiet title
action.
/ju^^^.
WE CONCUR:
Y^f/^^ 	J- 	v(.ffj&«&>K.x
-8-