'dRT OFAPPEALS DP TATE OF WASHiHGTO 20IXi APR 21 AHIhUS

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ROBERT MATICHUK, Appellant,

v. WHATCOM COUNTY, a Washington municipality; DAVID STALHEIM, in his capacity as Director ofWhatcom County, Planning &Development Services; NICHOLAS A. SMITH, in his capacity as Planner I,Whatcom County Planning &Development Services, Respondents. No. 69105-8-1 DIVISION ONE

UNPUBLISHED OPINION
FILED: April 21, 2014

Leach, J. — Robert Matichuk appeals the dismissal of his lawsuit for damages againstWhatcom County (County). He alleges that application of a county 

### zoning ordinance reducing the number of homes he could build on undeveloped parcels of land he purchased before the zoning went into effect amounted to an 

### unconstitutional taking of his property. However, because Matichuk presented no competent evidence to support his claim that the County's zoning ordinance 

### deprived him of alleconomically viable use of his property, we affirm the trialcourt's order on summaryjudgmentdismissing his lawsuit.No. 69105-8-1/2

FACTS Between 2005 and 2007, Robert Matichuk purchased a total of 8 contiguous undeveloped lots in Whatcom County (lots 17 through 24). He planned to build homes on the lots and resell them. Under the urban residential zoning in effect when Matichuk purchased the parcels, he would have been permitted to build a total of seven homes on the 8 lots. Matichuk began to develop the property in 2006. He obtained building permits for homes on lots 19 and 20. He built and sold those homes in 2007. He secured permits and built anothertwo homes on lots 21 and 22 in 2007. In February 2008, Whatcom County enacted Ordinance No. 2008-003, which amended the Whatcom County Comprehensive Plan Map and rezoned Matichuk's property to "Rural 5 acres." Each lot Matichuk purchased was less than five acres. Whatcom County zoning code provision, WCC 20.83.070, also applied. It consolidated adjacent lots under single ownership into a single lot when one ofthe lots did not conform to the minimum parcel size requirements. A few months after the new zoning ordinance became effective, Matichuk applied for building permits to constructthree residences on the 4 lots that remained undeveloped. Matichuk applied for a building permitto build one single-family home
on combined lots 23 and 24. He also applied for permits to build a home on lot 17 and a separate home on lot 18.No. 69105-8-1/3

In July 2008, Whatcom County Planning and Development Services (Planning Department) informed Matichuk that lots 17 and 18 were combined under the new zoning ordinance and that only one home could be built on the combined lot. The Planning Department also informed Matichuk that lots 23 and 24 were combined with lot 22. Matichuk had already built a home on lot 22 and retained ownership of that home. In August 2008, Matichuk sold the home on lot 22, together with the adjoining lots 23 and 24. Matichuk constructed a home on consolidated lots 17 and 18 and sold that property in May 2009. Matichuk challenged the Planning Department's decisions on his permit applications. He also applied for a comprehensive plan amendment seeking to have the rezoning lifted from his property. A hearing officer denied his appeal of the permitting decisions, and the county council denied his request for rezoning. Matichuk then filed this lawsuit in July 2011, seeking damages from the County. Among other claims, Matichuk alleged that the lot consolidation required by the rezoning amounted to an unconstitutional taking under the United States and 

### Washington State Constitutions.1

1 Matichuk also asserted a claim for conversion and a civil rights claim under 

### 42 U.S.C. § 1983 in his complaint. He appears to have subsequently abandoned both claims. -3-No. 69105-8-1/4

The trial court granted the County's motion for summary judgment and dismissed Matichuk's complaint. Matichuk appeals.2
ANALYSIS Before the 2008 changes, Whatcom County's zoning code allowed the construction of seven homes on Matichuk's 8 lots. But Matichuk did not have vested rights under this earlier zoning for the undeveloped lots because he had not filed 

### building permit applications for them before the enactment of the new ordinance.3 Nevertheless, Matichuk claimed the zoning amounted to an unconstitutional regulatory taking because he lost the opportunity to build and sell two planned homes. According to Matichuk, when the County denied him the permits to build these two homes, he lost all economically viable use of parcels 18, 23, and 24. Because Matichuk did not present competent evidence supporting this claim, we affirm the trial court. 

### We review an order granting summary judgment de novo.4 Summary judgment is appropriate where, viewing all facts and resulting inferences most favorably to the nonmoving party, no genuine issue of material fact exists and the 

### moving party is entitled to judgment as a matter oflaw.5
2 In addition to the County, Matichuk named two Planning Department 

### employees as defendants in his complaint. Matichuk failed to serve either of the employee defendants and when the court granted summary judgment in the County's favor, italso entered finaljudgment inaccordance with CR 54(b). 3 See Weyerhaeuser v. Pierce County, 95 Wn. App. 883, 890, 976 P.2d 1279 

### (1999); Hale v. Island County, 88 Wn. App. 764, 771, 946 P.2d 1192 (1997). 4 Brigqsv.NovaServs.. 166 Wn.2d 794, 801, 213 P.3d 910 (2009). 5Briqqs, 166 Wn.2d at 801; CR 56(c). -4-No. 69105-8-1/5


### A party requesting summary judgment has the initial burden of showing the absence of any genuine issue of material fact and entitlement to judgment as a 

### matter oflaw.6 A party opposing a requestfor summary judgment may not rest upon the allegations of his pleading; the response, by affidavits or as otherwise provided for by CR 56, must set forth specific facts showing a genuine issue ofmaterial fact.7 The party opposing a motion for summaryjudgment may not rely on speculation or argumentative assertions that unresolved factual issues remain or on having its affidavits considered at face value.8 The takings clause of the Fifth Amendment protects individuals against 

### uncompensated takings by both the federal and state governments.9 Article I, section 16 ofthe Washington Constitution further provides, "No private property shall be taken or damaged for public or private use without just compensation having been first made." 

### A land use regulation may result in an unconstitutional taking.10 For instance,
an unconstitutional regulatory taking may occur where the regulation destroys a

6Young v. Key Pharms.. Inc.. 112 Wn.2d 216, 225, 770 P.2d 182 (1989). 7 Grimwood v. Univ. of Puqet Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988).8 Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1,13, 721 P.2d 1 (1986); Craig v. Wash. Trust Bank, 94 Wn. App. 820, 824, 976 P.2d 126 (1999). 9 U.S. Const, amend. V ("nor shall private property be taken for public use, without just compensation"); Dolan v. City of Tiqard. 512 U.S. 374, 383-84, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994) (takings clause is made applicable to the states through the Fourteenth Amendment). 10 Presbytery of Seattle v. King County. 114 Wn.2d 320, 329, 787 P.2d 907 (1990). -5-No. 69105-8-1/6


### fundamental attribute of ownership, such as the right to make "some economically viable use of the property."11 Matichuk contends that the trial court improperly granted summaryjudgment based on the fact that he sold lots 18, 23, and 24. He claims that the court's ruling 

### was based upon merespeculation that these undeveloped lots added somevalue by increasing the size of the lots for the homes built on lots 17 and 22. According to Matichuk, the record contains no evidence that he received a higherpurchase price 

### because of the larger lots. Atthevery least, he argues a question offact exists for
this issue. 

### In its motion for summary judgment, the County argued that because Matichuk received value for the land, he could not establish that the zoning 

### ordinance deprived him ofall economically beneficial use ofhis property. Matichuk did not directly respond tothis argument. He simply maintained that because the 

### Countydenied his applications forpermitstobuildtwo additional homes, hecould do 

### nothing withthose lots and their "bestand onlyuse" was as additionalyard spacefor the adjoining homes. 

### At the hearing on the County's motion for summary judgment, Matichuk's counsel acknowledged that the undeveloped lots in question were not merely given 

### away. The court noted, "They may not have had thevalue that they could have had, had he built a separate home on each one, but my understanding is that

11 Guimont v. Clarke, 121 Wn.2d 586, 602, 854 P.2d 1 (1993). -6-No. 69105-8-1/7



## someone looking for alargerlotto go with their house would benefitfrom thatextra space." 

### Counsel for Matichuk also acknowledged that the record included no 

### evidence toestablish if or towhat extent thevalue ofthehomes on thecombined 

## lots was affected by the addition ofadjoining undeveloped property. Matichuk did 

## notproducethe purchase and sales agreements orany otherevidenceofthe sales 

## priceofeitherhome. Hedid notsubmitanyappraisals orotherevidencetoprovide abasisto comparethevalue ofthe homes with and withoutadditional undeveloped land. Counsel stated that hedid not believe that the incorporation oflot 18 would have made a "tremendous difference on value" with respectto the home builton lot 17 because both were small parcels. He admitted that consolidation ofthe 3 lots, 

## however, did create a "fairly large" parcel. When the court asked what evidence Matichukrelied uponto arguethatthe purchase pricewas the same hewould have received withoutthelotconsolidation, hefailed toidentify anyevidence. 

## On appeal, Matichukpoints outthatin2008,when he soldthehomeonthe3 consolidated lots, he entered into asupplemental agreementwith the purchasers to 

## allow him to reacquire lots 23 and 24 in the event that the County reversed its 

# permitting decision. Hefocuses onthefactthatthis agreementrecitesthatlots 23 and 24 were conveyed to the buyers, in addition to lot 22, "for no additional consideration." Matichukcontendsthatthis evidence supportsthe inferencethatheNo. 69105-8-1/8

derived no additional value from the undeveloped property and the court was 

### required to draw this inference in his favor. 

### However, to defeatthe County's motion for summary judgment, Matichuk had 

### the burden ofproducing competent evidence to establish the elements ofhis claim. 

### The evidence produced by Matichuk was simply insufficient to do so. Matichuk derived some economic value from the property he owned because he admittedly builthomes and sold them for value. He did not submit any evidence as to what that 

### value was, let alone establish that it was the same value he would have received 

### withoutthe additional adjacentproperty. Thesupplemental agreementproviding for 

### reconveyance oflots 23 and 24 and reciting "no additional consideration" for those lots does not, in and ofitself, establish that the adjacentlots added no value to the 

## property. And, of course, the agreement pertains to only one ofthe consolidated parcels at issue.12 Because Matichuk failed to meet his burden to produce evidence to establish 

### thatthezoning ordinance deprived him oftheabilitytomake someeconomically

12 Because of our conclusion that Matichuk failed to produce sufficient 

### evidence to defeat a motion for summaryjudgment on his taking claim, we do not 

## address the County's argument that Matichuk lacked standing to assert his claim because he is not the current owner ofthe property. -8-No. 69105-8-1/9

viable use of his property, the trial court did not err ingranting summaryjudgment on Matichuk's taking claim.
We affirm.

WE CONCUR:

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