Public records requesters must submit “refresher request” for newly available or previously exempted documents

By Tadeu Velloso

On October 10, 2019, our State Supreme Court released Gipson v. Snohomish County, No. 96164-6,  regarding public agencies’ use of exemptions when responding to requests made pursuant to the Public Records Act (PRA). 

Here, Ron Gipson, who was employed at the Snohomish County Denney Juvenile Justice Center, was under investigation for several allegations of sexual harassment and sexual discrimination reported by several female corrections officers.  Gipson was also the longest serving council member on the Everett City Council and up for reelection in 2015.

Gipson submitted a public records request on November 28, 2014 for “all [public] records which in any mentions the name Ron Gipson[.]”  Snohomish County (“County”) received the request on December 1, 2014.  The County disbursed responsive records in five installments.  The County claimed that some documents were withheld due to the PRA exemption for records related to active and ongoing investigations.

Gipson filed a complaint in King County Superior Court seeking disclosure of the redacted records and statutory penalties under the PRA.  The trial court granted summary judgment for the County.  Gipson appealed.  The Court of Appeals affirmed, holding that the exemption applied at the time the request was made and the county was not required to update its responses once the investigation ended.  The Supreme Court affirmed, reasoning that the County properly applied the active and ongoing investigation exemption.

In its decision, the Court adopted the test set forth in Sargent v. Seattle Police Department, 167 Wn. App. 1, 260 P.3d 1006 (2011), aff'd in part and rev'd in part on other grounds, 179 Wn.2d 376, 314 P.3d 1093 (2013) (“Sargent I”).  In Sargent I, the Court of Appeals created a bright-line rule explaining that an agency responding to a records request is “not required to monitor whether newly created or newly nonexempt documents.”  Id. at 12. 

Briefly, Gipson argues that since the investigation was completed on February 2, 2015, all subsequent records produced by the County were no longer subject to the investigation exemption.  But as the Court notes, this would create an unreasonable expectation on agencies. 

 When agencies are forced to produce several installments in response to a voluminous records request, those installments are not treated as stand-alone requests under the PRA. An agency is required to provide only records in existence at the time the request is made. An exempt record, like a nonexistent record, is not available for inspection, and an agency is not obligated to produce it.   The PRA also does not require that an agency inform a requester when an exemption expiries.  As such, when the requester is aware of new records or that a previously-used exemption has expired, the requester must make a “refresher request.” 

The Court also explained that this rule furthers the public policy that underlines the PRA.  Agencies received several requests for public records.  An agency identifies what records are responsive and what exemptions apply at the time the request is received.  This allows for prompt responses to the requester.  Obligating agencies to reevaluate a request would only delay the request response and overburden our agencies.

State Supreme Court reverses and remands determination that City of Tacoma was not liable for damages in land use case.

By Tadeu Velloso

On September 19, 2019, our State Supreme Court released a decision in The Church of Divine Earth v. City of Tacoma.   The Court only considered whether the City of Tacoma (City) can be held liable for damages for imposing an unlawful condition on a building permit. 

The Church of Divine Earth (Church) sought to build a parsonage on church-owned land.  Among other requirements, the City required the Church to dedicate land for a right-of-way without any compensation from the City.  Despite dropping the other requirements and conditions, the City still required that the Church dedicate the right-of-way. 

The Church appealed to the hearing examiner.  The hearing examiner ruled in the City’s favor relying on the need for street uniformity in that area.  The Church then appealed to the Superior Court.

In the LUPA appeal, the Superior Court decided that the City acted unlawfully by imposing the dedication of land requirement as a condition of the Church’s building permit.  However, the Superior Court denied the Church’s request for damages.  The Court of Appeals affirmed.  Here, the Supreme Court reversed the Court of Appeals’ decision and remanded this matter for new trial. 

The Court did not consider the constitutionality of the underlying land use decision or just compensation for a taking.  Instead, it considered whether the City should have known that its actions were unlawful.  To prove otherwise, the City would have to establish that the required easement dedication solved a public problem and, as such, the condition was proportional to the impact resulting from the Church’s proposed project.  The City was unable to justify its dedication requirement relying solely on the need for street uniformity as raised by the hearing examiner.

The Court determined that, on appeal, the trial court considered “improper, irrelevant evidence,” including testimony from City officials regarding visibility concerns, and that “the Court of Appeals . . . applied the wrong standard in its review.”  Majority at 5-6.  RCW 64.40.020 establishes an objective standard, asking whether the City’s final decision “should reasonably have been known to be unlawful.”  Instead, the Court of Appeals held that the City “reasonably believed” its dedication requirement was lawful—a subjective standard.  The Court notes: “The City's subjective belief that the dedication was lawful does not determine what it objectively should reasonably have known.”  Majority at 9.

Justice Yu, with support from Chief Justice Fairhurst, authored the accompanying dissent reasoning that the trial court did not err by considering additional evidence and that the Court of Appeals applied the correct legal standard for assessing liability.

The opinion can be read in its entirety here.

Stacey Tuesta
Olympia Office Hiring Administrative Assistant

Our Olympia office is looking to hire an amazing administrative assistant that would be the front lines of our growing law firm. If you (or someone you know) are motivated by excellence and exacting detail, love being on the “front line”, and skilled in providing the highest quality customer service, we want to hear from you!

This person serves as the primary administrative assistant (front desk) in our Olympia headquarters office, and provides front line support to the firm, its clients and third parties. Duties include general reception, multi-line phones, scheduling/calendaring, assist with opening files, maintaining office supplies, mail, filing, scanning, bill processing support, closing files, and various administrative projects to assist our team. The successful candidate must be a self-starter, organized, personable, flexible, and possess exceptional interpersonal and customer service skills.

Please send cover and resume to info@phillipsburgesslaw.com or https://jobs.smartrecruiters.com/ExpectingChangeLLC/743999694572037-administrative-assistant-receptionist?fbclid=IwAR0RvwSrCRH3obWxTV0USzf01gkIMZEkPOBgvx2n8wpdJqGxqmDt9sH9FZg

Stacey Tuesta
Olympia on hold from dismantling camp underneath Fourth Avenue bridge

By Tadeu Velloso

A local church has offered to be of service to campers under the Fourth Avenue Bridge in Olympia, Washington, where they will help create rules and start holding meetings with the people staying under the bridge. This has delayed the City’s plan to give eviction notices to the campers that was set to roll out on September 11th. Instead the City is on hold and is in the process of finding places for those staying under the bridge to go.

Local governments have been confused about what recourse is available to them in addressing their issues with homelessness due to the Ninth Circuit’s recent holding in Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018).  But the U.S. District Court in the Northern District of California has directly addressed the question of whether a City has the authority to close an encampment located on public property.

In Miralle et al. v. City of Oakland, Plaintiffs established an encampment on a city-owned parcel in Oakland, California.  When notified of the encampment, city officials informed Plaintiffs that they were trespassing.  On November 8, 2018, Oakland posted a “Notice to Vacate Illegal Encampment.”  The following day, Plaintiffs filed a motion for temporary restraining order, motion for preliminary injunction blocking their removal, and a complaint. 

At issue was whether the Ninth Circuit’s recent holding in Martin hindered Oakland’s attempt to close the encampment.  But as the Court held, the Martin decision is narrow: “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” Martin, 902 F.3d at 1048. So, as long as there are no indoor sleeping options, “the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.” Martin, 902 F.3d at 1048.

To be clear, Martin does not establish a constitutional right to occupy public property indefinitely at Plaintiffs’ option.  Notably, the Martin court also explained that its “holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it.”  Martin, 902 F.3d at 1048 and n.8.  In Miralle, Oakland claimed that the encampment closure would be consistent with its Standard Operating Procedure which includes, among other things, an offer of shelter beds and resources to individuals at the encampment prior to and during the closure.  At a November 26, 2018 hearing, Oakland committed to providing the encampment residents with temporary housing.  Plaintiffs’ theory would therefore require the Court to extend the right described in Martin well beyond the parameters set by the Ninth Circuit.

Ultimately, as the Miralle Court aptly notes, the legal question does not focus on whether Oakland has adequate policies for handling its homelessness problems.  Rather, the Court is tasked with analyzing whether “the Constitution forbids the City from making difficult decisions it judges to be in the best interests of all its residents by implementing a policy it believes appropriately balances the important individual and community rights implicated by encampments on public land[.]”

Stacey Tuesta
Phillips Burgess PLLC ranked in 2019 “Best Law Firms”

PRESS RELEASE

Phillips Burgess PLLC has been ranked in the 2019 U.S. News – Best Lawyers® “Best Law Firms” list nationally in 1 practice area and regionally in 2 practice areas.

Firms included in the 2019 “Best Law Firms” list are recognized for professional excellence with persistently impressive rating from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.

The 2019 Edition of “Best Law Firms” includes rankings in 75 national practice areas and 122 metropolitan-based practice areas. A “Law Firm of the Year” is named in 74 of the 75 nationally ranked practice areas.

Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity.

Phillips Burgess PLLC received the following rankings in the 2019 U.S. News – Best Lawyers “Best Law Firm”:

National Tier 2

National Tier 3

     Litigation – Environmental

Regional Tier 1

     Seattle

         Litigation- Environmental

Regional Tier 2 

     Seattle

          Environmental Law

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For additional information: Stacey Tuesta, Administrative Assistant, stuesta@phillipsburgesslaw.com

Official press release here

Stacey Tuesta
Heather Burgess was added to 2020 Best Lawyers® List

PRESS RELEASE

Phillips Burgess PLLC is pleased to announce that Managing Partner, Heather Burgess, has been included in the 26th Edition of The Best Lawyers in America. Heather has been recognized each year since 2016 by Best Lawyers in Environmental Law and Litigation and was added to the Land Use and Zoning Law list in 2019. Lawyers who make this list are recognized by peers based on professional expertise, and undergo an authentication process to make sure they are currently practicing and in good standing.

We congratulate Heather once again for being recognized by this respected organization.

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For additional information: Stacey Tuesta, Administrative Assistant, stuesta@phillipsburgesslaw.com

Official press release here

Stacey Tuesta
Growth Management Hearings Board invalidates City of Olympia’s Missing Middle ordinance.

By Tadeu Velloso

The Growth Management Hearings Board recently released a Final Decision and Order invalidating the City of Olympia’s “missing middle” regulations. 

Olympia’s “missing middle” ordinance allows more multifamily housing—duplexes, triplexes, fourplexes, accessory dwelling units (ADUs), and courtyard apartments—to be built in low-density neighborhoods.   This plan is referred to as the “missing middle” because, in theory, it provides housing options on the spectrum between single-family homes and large apartment buildings. 

In January, a group called Olympians for Smart Development & Livable Neighborhoods filed a petition for review with the state’s Growth Management Hearings Board. In March, it ruled the city did not thoroughly consider potential environmental impacts as required under the State Environmental Policy Act, or SEPA.

In its July 10th opinion, the Board found the city failed to comply with the Growth Management Act by not anticipating impacts on the environment, public facilities and services. 

The Board was also persuaded by the arguments that the “missing middle” changes fail to implement Olympia’s comprehensive plan, namely the call to preserve “neighborhood character.” 

The city plans on seeking reconsideration of the Board’s decision.

You can read the decision here.

Stacey Tuesta
Long-awaited report on Washington’s future growth released

By: Tadeu Velloso

The William D. Ruckelshaus Center recently released its long-awaited report on the Growth Management Act and related laws as applied to the future growth of Washington State.  In 2017, the Washington State Legislature allocated funds to the Center for a two-year project to create a “Road Map to Washington’s Future.” The project’s purpose was to articulate a vision of Washington’s desired future and identify additions, revisions, or clarifications to the state’s growth management and planning framework needed to reach that future. To understand how the framework aligns with, creates barriers to, and/or supports the desired future of the communities it is meant to serve, the Project Team traveled across the state, gathering information and hearing from nearly 2,500 individuals, which included approximately 400 elected officials.

 The report includes some suggested avenues of transformational and systemic change including:

                1. Funding and revenue generation through equitable and reliable sources;

                2. Adaptive planning at a regional scale through exploration of an Adaptive Management, regionally-focused approaches, and consultation between governments;

                3. Resilience to changing conditions and disasters;

                4. Statewide water planning;

                5. Integration of equity into growth planning; and

                6. A statewide Economic Development Strategy and integrating Ports into Growth Planning.

 To read all four volumes of the report, click here.

Stacey Tuesta
2019 Daniel Bigelow Award Winner
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We are pleased to announce that one of the founding members of the firm, Richard G. Phillips, Jr., received the 2019 Daniel Bigelow Award handed out by the Thurston County Bar Association. Current partners, Heather and Trevor, along with associates and support staff attended the TCBA Annual Meeting to watch Mick receive this special honor.

Stacey Tuesta
Transactional Attorney, Michael Kelly graduates from 2019 Business Leadership Academy
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The staff would like to recognize and congratulate Transactional Attorney, Michael Kelly, on his graduation from the Business Leadership Academy with the Tacoma-Pierce County Chamber and Pacific Lutheran University. This was the 41st cohort to participate in this program.

Please see the following press release from Tom Pierson, President and CEO of Tacoma-Pierce County Chamber:

"Michael Kelly, Attorney at Law at Phillips Burgess, PLLC, graduated with the 41st Business Leadership Academy cohort at a ceremony held on April 3, 2019.

“The class of 2019 was a delight to be with as we examined leadership concepts and explored the many ways to be an effective and inspiring leader. With their professionalism, diligence, and thoughtful care, they are sure to make a difference in our community,” said Dr. Catherine Pratt, Faculty Director at Pacific Lutheran University.

Tom Pierson, President and CEO of the Tacoma-Pierce County Chamber and co-director of the Leadership Academy with Dr. Pratt, agreed, “I am honored to have spent time with the leaders who are graduating from the Business Leadership Academy this week, they are changing the world – starting here in the South Sound!”

The Business Leadership Academy of Tacoma-Pierce County, founded in 1971 and sponsored by the Tacoma Pierce County Chamber and Pacific Lutheran University, offers an opportunity for current and emerging leaders to engage with the business community, explore leadership applications, learn from leaders and visit organizations that make an impact on our community, assess individual strengths, and reflect on opportunities for growth.

The next Business Leadership Academy begins January 29, 2020. Applications will be available soon at tacomachamber.org/business-leadership-academy.html"

Stacey Tuesta
Thurston County Realtors Association award
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Partnership of the Year 2018 Award

On March 8th, at the Affiliates Showcase and General Membership meeting,we were surprised to find out that we had been chosen to receive this award. Partner Trevor Zandell went up and accepted the award on behalf of the firm.

We had a great time meeting with others who are part of the real estate network in Thurston County.

Stacey Tuesta
Big Brothers Big Sisters of Southwest Washington
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Tadeu Velloso, one of our land use and environmental law attorneys, will be a featured speaker at Big Brothers Big Sisters of Southwest Washington's Big Brunch fundraiser.  Tadeu will be sharing about his experiences of being one of the program's former Little Brothers and a current Big Brother. Our attorneys will be there, supporting both Tadeu and the organization.  We would love for you to join us!

March 14, 2019 from 11:00 AM to 12:30 PM at the Hotel RL in Olympia, WA.

Stacey Tuesta
New Tacoma Office

We are excited to announce that we have moved into a new space in Tacoma. We will be hosting an open house in the near future.

Praece Consulting
High-water line “hydraulic projects” fall within the Dep’t of Fish & Wildlife’s permitting authority

Earlier this month, the Supreme Court of Washington released its opinion in Spokane County v. Department of Fish and Wildlife. Briefly, anyone seeking to complete a hydraulic project must get a preconstruction approval permit from the Department of Fish and Wildlife. A “hydraulic project” is defined as “the construction or performance of work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state” in RCW 77.55.011(11). The Department has the ability to deny or condition a permit to protect fish life. RCW 77.55.021(1). In 2015, the Department promulgated new rules requiring a permit for bridge maintenance and construction, even if the work would occur above the high-water line. WAC 220-660-190. Spokane County, in coalition with other Washington counties, sought an exemption for work done entirely above the high-water line.

The counties first raised their concerns during the comment period of the 2015 rulemaking process. Then, the counties sought guidance from the attorney general. However, the attorney general issued an opinion concluding that the statute was unambiguous and provides the Department with permitting jurisdiction for “all work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state," regardless of whether the activity is above or below ordinary high-water lines. The counties challenged the interpretation in court and lost and thereafter appealed the decision directly to the Supreme Court. The Supreme Court affirmed.

Considering the statute’s plain language, the Court found the statutory definition of “hydraulic project” unambiguous and held that the definition applies to projects above the high-water line that are reasonably certain to “use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state.” The Court deferred to the Department's expertise in determining which projects meet that standard. The Court looked to the statute’s legislative history and found examples of projects that would be. Ultimately, the Court held that the plain language of RCW 77.55.021 grants permitting authority to the Department of Fish and Wildlife for upland projects that meet the effects test set forth in RCW 77.55.011(11). The Court also held that the effects test requires reasonable certainty, not absolute certainty.

Stacey TuestaRegulation