IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
CITY OF UNION GAP , a municipal corporation of the State of Washington, Appellant ,

v. PRINTING PRESS PROPERTIES , L.L.C., a Limited Liability Corporation registered and doing business in Washington State, Respondent

. ) ) ) ) ) ) ) ) ) ) ) ) ) No. 34740

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- III

PUBLISHED OPINION

F EARING , C. J.

— Plaintiff city of Union Gap and defendant Printing Press Properties, LLC, (Printing Press) scrimmage as to whether Printing Press may cut a curb and gain direct access to a major arterial from its land. The trial court granted Printing Press summary judgment and denied Union Gap an injunction to prohibit the access. Because Printing Press signed a development agreement granting Union Gap the prerogative to deny direct access to the arterial, we reverse and grant judgment to Union Gap.
FACTS This lawsuit concerns Printing Press ’ access to Valley Mall Boulevard , a new arterial , whose centerline often serves as the boundary between th e cities of Yakima and 

### FILED JANUARY 25 , 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

2 Union Gap. Union Gap , the original Yakima City, lies to the south of Yakima. The b oulevard runs east

- west and connects Interstate 82 and the Yakima Air Terminal , Yakima’s principal airport

. Union Gap designe d, constructed, and mai ntains the b oulevard

. Printing Press owns commercial property abutting Valley Mall Boulevard and adjacent to the b oulevard’s intersection with Longfibre Road. All of Printing Press’ land

now lies within the Yakima C ity limits and north of the b oulevard. Railroad tracks run north and south and lay directly east of Printing Press ’ land. As part of the b oulevard improvement, Union Gap constructed a bridge over the tracks. Printing Press seeks to build direct access from its property to Valley Mall Boule vard. It labels this access as a “driveway.” The city of Union Gap , citing safety

concerns, denied Printing Press ’ application to c reate the d riveway. In stead of appealing Union Gap’s denial of access, Printing Press withdrew its application and submitt ed the same proposal to the city of Yakima, which proposal Yakima approved. With this suit, Union Gap seeks to permanently enjoin Printing Press from cutting the boulevard curb such that a constructed drivew ay pe rmits access on to the boulevard.
Before construction of Valley Mall Boulevard, Longfibre Road provided ingress and egress to Printing Press’ land via Washington Avenue , a major east

- west arterial to the north of the boulevard. Printing Press’ land abut s Longfibre Road. Longfibre Road still c on nects Printing Press’ land to Washington Avenue and now connects the land toNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

3 the boulevard

. Printing Press assigned some of its land to Lowe’s Home Improvement for a store

. Printing Press and Lowe’s seek direct access to the b oulevard.
Before commencin g construction for Valley Mall Boulevard, Union Gap adopted city O rdinance 2123 to g ove rn use of the future boulevard. The ordinance intend ed to provide coordinated standards for p ermitting access to the b oulevard and to confirm that the access rights of abutting land owner s are subordinate to the public’s right and interest in a safe and efficient arterial system. U NION G AP M UNICIPAL C ODE ( UGMC ) 9.34.010. Union Gap Ordinance 2 123 designated the boulevard as a “controlled access arterial” and permit s driv eway access to the b oulevard only “when other alternatives such as an abutting public street or internal access road are not possible for access.” UGMC 9.34.060(a). Union Gap possesses authority to condemn property outside its jurisdiction

. RCW
8.12. 030; In re Petition of City of Long Beach , 119 Wn. App. 628, 634, 82 P.3d 259 (2004)

. Nevertheless, t o a nticipatorily quell Yakima resident s ’ concerns about Union Gap’s control along Valley Mall Boulevard on Yakima’s side of the road , Union Gap and Yakima , on March 8, 200 1, entered an i nterlocal a greement

. The two had planned the boulevard since the late 1990s. The agreement in part reads: This I nterlocal Agreement is made by and between the CITY OF YA KIMA, a Washington municipal corporation, hereinafter “ Yakima, ” and the CITY OF UNIO N GAP, a Washington municipal corporation, hereinafter “ Union Gap, ” each being duly authorized and acting under theNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

4 laws of the State of Washington, pursuant to author i ty vested in each by the Interlocal Cooperation Act, RCW Chapter 39.34, as follows: 1. Union Gap is involved in the development of a project known as the “ Valley Mall Boulevard Extension, ” which is an effort to purchase right of way and construct an extension of Valley Mall Boulevard from its present location near the I

- 82 Interchange in Union Gap to the Yakima A ir Terminal, some distance to the West. Yakima supports t hi s project and has allocated $590,000.00 of federal highway safety funds for the project. The Va l ley Mall Boulevard project is a cooperative v enture between the Washington State Department of Transportation, the City of Yakima, the City of Union Gap, and Yakima County. The project is of major significance to the entire region as it would provide an important d irect link between the air terminal and the I

- 82 freeway. 2. Union Gap Ordinance No. 2271 authorized the Union Gap City Attorney to initiate condemnation proceedings for acquisition of the necessary right of way in Yakima Co u nty Superior Court Cause No. 01

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- 00041

- 1. 3. In the course of the hearing required for adjudica ti on of use and necessity of this project, some land owners have argued that the Property sought to be condemned is located within the boundaries of the City of Yakima and not within the boundaries of the City of Union Gap

. . . . 4. The parties hereto are authorized b y RCW 39.34.030 to exercise their powers of condemnation jointly, and for that pu r pose, the City of Yakima herewith assigns to the City of Union Gap all of its authority and attendant ability to condemn the P roperty for the Valley Mall Boulevard Project, as described in Exhibit A. For these purposes, the City of Union Gap may act on behalf of the City of Yakima, in its place and stead, in the negotiation for, condemnation and acquisition of the Property locat ed wi t hin the boundaries of the City of Yakima. 5

. As partial consideration for this jo int undertaking, Union Gap shall protect, defend, indemnify, and hold Yakima harmless from and against any and all claims, demands, losses, liens, liabilities, penalti es, fines, lawsuits, and other proceedings and costs and expenses (including attorney ’ s fees and disbursements), which accrue to or are incurred by Yakima on or after execution of this Interlocal Agreement and arise directly or indirectly from or out of, r elate to, or in any way are connected with (1) The eminent domain proceedings or any related actions contemplated by this I nterlocal Agreement.No. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

5 (2) Challenges concerning the legal authority to enter into or implement this lnterlocal Agreement or the ord inance authorizing condemnation.

. . . . (5) The design, construction, re construction, installation, repair, maintenance, operation, alteration, or modification of the Valley Mall Boulevard street and transportation improvements (or other public impr ovements) on the p roperty . . .

.

. . . . 7. Yakima and Union Gap agree that this Interlocal Agreement shall have an indefinite duration and cannot be te rm inated unless both parties consent in writing to such te rm ination.
C lerk’s Papers (C P ) at 249

- 51

. Yakima passed and adopted the i nterlocal a greement as a city ordinance o n March 6, 2001.
In a declaration in support of Printing Press’ summary judgment motion , Yakima City Attorney Jeff Cutter expounded on Yakima’s view of the a greement. Although
Cutte r interpreted the a greement to authorize Union Gap to act as Yakima’s agent , he declared that the: Interlocal Agreement simply authorized Union Gap to act on behalf of Yakima with respect to the condemnation of properties located within Yakima jurisdiction

. Union Gap acted as “ ag ent ” for City of Yakima. It did not change municipal boundaries, relinquish jurisdictional authority or otherwise modify land use authority with res pect to properties lying within the City of Yakima.
CP at 1046. Jeff Cutter cha llenged Union Gap’s claim that Yakima assigned Union Gap the former’s “ regulatory authority to regulate the Boulevard

. ” CP at 963. To facilitate the Valley Mall Boulevard project after signing the i nterlocal

a greement, Union Gap procured the ne eded land t hrough a combination of voluntaryNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

6 purchases and condemnation proceedings

. Around 2000 and before signing the i nterlocal

a greement , Union Gap contacted Printing Press to acquire a strip of the southern portion
of its land to lengthen the b ouleva rd to the w est. Although some Yakima residents contested Union Gap’s authority to condemn land located in Yakima , Printing Press did
not

. Printing Press’ land then rested in both Yakima and Union Gap. During negotiations for the purchase of Printing Press’ land, Union Gap paid Printing Press $750 to conduct an appraisal of the needed 95,377 square feet of land

. Printing Press ’ appraisal acknowledged that immediate access to its land “is by Longfibre Road which is a satisfactory two lane rural road , ” and that “[w] hen Valley Mall Boulevard is completed, immediate access [to the b oulevard] may not be enhanced due [to] the rise of [a] bridg e over the railroad tracks. ” CP at 324. Printing Press denies that this appraisal language contemplated Union Gap’s acquisition of Printing Press’ access rights to the b oulevard. Printing Press ’ appraisal valued t he portion of 95,377 square feet of property to be taken by Union Gap for Valley Mall Boulevard at $ 125,600

. Union Gap ultimately purchased the plot from Printing Press for $45,000. According to Printing Press , it donated the difference between the purchase price and the value of the property to the boulevard project. A s part of th e trans fer, Printing Press requ ired Union Gap to sign a “Donee Acknowledgment,” that reco gnized that Union Gap acquire d all of Printing Press’ “right , title or interest in the property by quitclaim deed.” CP at 239

.No. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

7 On March 19, 2001, Printing Press executed a q uitclaim d eed to a narrow strip of land for use as part of Valley Mall Boulevard in favor of Union Gap. The deed read, in relevant part:
V a lley Mall Boulevard Extension The Grantor, Printing Press Properties, LLC, a Washington Limited Liability Company, for and i n consideration of the sum of TEN and No/100

— ($10.00)

— Dollars, and ot her valuable consideration, conveys a nd quitclaims to the City of Union Gap, a Municipal Corporation of the State of Washington, the following described real estate, and any after acquired interest therein, situated in Yakima County, in the State of Washin gton, to the same extent and purpose as if the rights herein granted had been

— acquired under Eminent Domain statutes of the State of Washington

. CP at 394. The transfer included only a small portion of Printing Press’ parcel. Printing Press reserved n o easement or other interest in the transferred land. Nevertheless, Jay Sentz, managing member of Printing Press, declares that the deed did not transfer access rights to the boulevard. He characterizes the deed as only transferring a right of way to Uni on Gap. UGMC 9 .34.030(b) recognizes that “ every owner of property which abuts a controlled access arterial has the right to reasonable access to that roadway. ” Printing Press continued to own land immediately abutting the purchased land and north of Vall ey Mall Boulevard. The city of Union Gap commenced construction of Valley Mall Boulevard following the acquisition of all needed land , and Union Gap remained the lead agency on all project phases. The total cost of the boulevard project was $21.5 millio n. Union GapNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

8 contributed seven percent of the total project cost . Most funding came from the federal government. The city of Yakima contends it served as the certification acceptance agency for the project and that its duties as th is agency included rev iew and approval of all project design s , plans, specifications , utility and railroad agreements , consulting and engineering agreements , construction estimates , award and execution of construction
contracts , and construction administration . Union Gap claim s it entered all agreements regarding the design and construction of the arterial road. Valley Mall Boulevard now constitutes a completed four

- la ne “Intermodal
Connector ” providing vital access between I nterstate 82 , lying east of Union Gap and Yakima, a nd the commercial, industrial and agricultural businesses to the west of the cities of Yakima and Union Gap

. The b oulevard extends 3.3 miles with a half m ile section of its centerline aligned with the boundary between Union Gap and Yakima. The speed limi t on the boulevard is 40 m

. p . h

. Union Gap pays all bills for street lighting. Union Gap performs boulevard striping, sweeping, maintenance, vegetation control, and snow and ice control. The Union Gap Police Department responds to calls for emergencies o n the boulevard. In 2006, the city of Union Gap approached Printing Press Properties to participate in a partnership to improve the Valley Mall Boulevard and Longfibre Road intersection

. The two entities , along with Clary Properties, LLC, an owner of la nd to the west of Longfibre Road, reach ed a development agreement , pursuant to RCW 36.70B.170, toNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

9 recondition the intersection

. Before the entry of the agreement, a wedge

- shaped portion of Printing Press’ land rested within the municipal boundaries of the c ity of U nion Gap , with the remaining l arger portion of Printing Press’ parcel within the boundaries of the

c ity o f Yakima. We refer to the area formerly inside Union Gap limits as “the wedge.” We refer to the remaining larger portion as the “ eastern po rtion.” Although the boundary between the two cities generally runs east and west, the boundary along Longfibre Road then turned and ran north and south. The wedge l ies immediately to the east of Longfibre Road. We will refer to all of Printing Press la nd, in other words, both the wedge and the eastern portion, as the “entire tract.” The property constitutes one tax parcel. Other than the wedge formerly resting in Union Gap, no reason existed to distinguish the wedge from the eastern portion of the lan d. Exhibit B, attached to the development agreement, assists in identifying and understanding the layout of Printing Press’ land, Valley Mall Boulevard, Longfibre Road, and the Clary land. We attach the exhibit to this opinion. We also attach t w o overhe ad photographs of the area. Yakima and Union Gap agreed to adjust the municipal boundaries so that all of the Printing Press’ property would sit w ith in the boundaries of the c ity o f Yakima. In other words, Yakima, with the permission of Union Gap, annex ed the wedge. Union Gap and Printing Press agreed to extend Longfibre Road farther south to provide greater access to Printing Press’ land and to add utilities in the improved area

.No. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

10 On February 28, 2008, the city of Union Gap and Printing Press entered a development agreement to consummate the understanding with regard to improvement of the Longfibre Road and Valley Mall Boulevard intersection. A major question on appeal is whether the development agreement cover s only the wedge formerly within Union Ga p or Printing Press’ entire tract. The recording cover sheet for the agreement contain s a

“ legal description , abbreviated form” that read s : Legal Description (abbreviated form: i.e. lot, blk., plat or S.T.R. quarter/quarter) SE1/4 SW1/4 SE1/4 S. 31, T 13 N, R. 18 EWM Additional legal is on page _____ Asse ssor’ s Property T ax/ Parcel Account Number 191331

- 44004
CP at 602. The first page of the development agreement contain s the following block:
Gr antors: (1) PRINTING PRESS PROPERTIES, LLC
Grantee: (1 ) CITY OF UNION GAP Abbreviated Legal Description: SE 1/4 SW 1/4 SE 1/4 S 31, TI3N, R 18 EWM Complete legal description is attached as Exhibit A to this document.
A ssessor’s T ax Parcel ID No s .: 19 1 331

- 44004
CP at 603. Exhibit A attached to the develo pment agreement reads: Exhibit “ A ” That part of the southeast quarter of the so uthwest quarter o f the sout heast quarter of Section 31, Township 1 3 North, Range 18 East W

. M., l yi n g westerly of the c ity limits of Yakima, Was hington.No. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

11 CP at 612 (e mphasis a dded). The property to the west of the Yakima limits is the wedge. The body of the agreement declare s : RECITALS A. Wh e reas, the City of Union Gap, in p artnership with the Yakima Co un ty Development Association (YCDA), is seeking to fa cil i tate the developm ent of commercial and light industrial

- zoned property in the vicin i ty of Ahta num Road, Valley Mall Boulevard and Longfibre Road; and B. Wh ereas, as a part of this proc ess the City h as applied for and received grant and loa n funds to implement a multi

- phas e strategy of road, water and inte rs ection improvements ( “ Phase 2 Road Improvem e nts ” ) to serve commercial and light industrial zoned properties; and C. Whereas, Bud Cla ry Toyota of Y ak ima ( “ Clary ” ) and PPI [Printing Press Properties] are owners of real pr operty located a t the intersection of Valley Mall Boulevard and Longfibre Road and intend to develop such properties (the “ Subj ect Properties ” ); and D. Where as, the deve lopm ent of the s ubject Properties is facilitated by the extension of Longfibre Road an d significant c ommunity benefits are derived from the further development of a traffic grid syste m, extension of public wat e r services and potential employm ent and tax revenues deriv ed from development; E. W h ereas, the parties to this Agr eement desire to establish a framework, to the ex tent authorize d by state law, in order to i n tegrate and expedite the timely review , approval and construction of the proposed private development and supporting public improvements. Now, th ere fore be it resolved that the pa rti es hereby agree as follows: AGREEMENT 1. Proposed Private Develo pm ent

. PPI o wn s or controls certain real properties located in the City of Union Gap , commonly kn own as the PP I site, legally described on Exhibit “ A ” attached hereto and incorporated he rein by this reference. I t is the intent of PP I to sell and/or deve lop the subject pro perty with commercial or light industrial land uses consistent with applicabl e municipal d evelopment standards. 2. Amendment of Municipal Boundaries

. The P PI property is currently subject to split jurisdiction between City of Yakima an d City of Union Gap. The approximate location of the current municipal bounda ry isNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

12 s et forth on attached Exhibit B.

. . . I t is agreed that the entire PPI parcel will b e incorporated int o th e City of Y akima. All of the road right

- of

- way improvements for Longfibre Road as i t extends north from Valley Mall Boulevard shall be within the jurisdiction of the City of Un ion Gap

. 3. Participation in Phase 2 Road Improvement

. PPI shall particip ate in Longfibre Road Phase 2 Road Improvements as follows: a. PPI shall dedicate to the City such right

- of

- way and slope/drainage easements that may be required to extend Longfibre Road as depicted in Exhibit C.

. . . I n ge neral terms the right

- of

- way wi ll include the fol lowing: i. The improvements w ill include street, sidewalk, lighting and storm drainage.

. . . ii. Accommodation of inters e c tion improvements and signalization equipment including tu rn lanes necessary on Longfibre Roa d at the intersec tion with Valle y Mal l Boulevard.

. . . . c. PPI shall incorporate the f ollowing access management requirements into all site development plans: i. PPI acknowledges that provisions of UGMC Chapter 9.34 may prohibit direct access to Valley Mall Boulevard

. Any access to the property from Valle y Mall Boulev ard shall be subject to municipal review and conditi oning at time of project pe rmit application.
CP at 603

- 05 ( e mphasis added). The parties’ dispute focuses on subsection 3.c.i. of the agreement. We will alternatively refer to th is subsection as the “access subsection” or “subsection i.” The development agreement continues in section 3.c: ii. The centerline of the southerly most access point from the PPI prop erty to Longfibre Road shall be no closer than 200

- feet from the south property li ne to the subject property. iii. Additional access p oints to Longfibre Road sha ll be a minimum of 200

- feet apart as measured centerline to centerline and must be coordinated with ac cess points on the west side of Lo ngfibre Road, unless otherwise ap p roved by the Director of P ublic Works. d. PPI will be responsible for and shall contribute its identified share of the costs associated with the construction of the Phase 2 Road Improvements, such estimate of project fund ing set forth o n Exhibit D. PP INo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

13 shall not be responsible for any portion of the improvement cos ts for extension of the City of Union Gap water main or intersection improve ments (including traffic signal improvements ) to Longfibre Road/Valley Mall Bo ulevar d.

. . .

. . . . 4. SI ED Grant and Loan Funds

. Ci ty has applied for and received a gran t of up [to] $ 278,0 00 and loan of up to $27 8, 000 from th e Yakima County Supporting Investments in Economic Development (S I ED) Board to as sist in the financing of Pha se 2

- Longfibre R o ad Improvement Projects.

. . . Suc h improvem en ts include approx imately 600 linear foot arteria l road e xtension n orth from Valley Mall Boulevard

. . . ; intersection improvements and traffic sig nals at Valley Mall Boulevard an d Lo n gfibre Road . . . ; and water main exten s ion (approxima tely 1300 LF) along the east side of the Clary property

. . . . These improvements subject to conditions and provided that: a. City shall design, build, co ns truct, and mai ntain the improvements associated w ith the extension of Longfibr e Road and the extension of the City water main in accordance with the terms a n d conditions of the S I ED Contract

. . . .

. . . . c. The City shall consult with P PI prior to taking the following actions: i. the approval of the plans and specifications for Sc h edule A of the S I ED funded improvements and, ii. Approval of the lowes t responsible b i d for Schedule A improvements.

. . . . d

. . . . iv. Exce pt as set forth ab ove, PPI shall have no responsibility for costs, expens es or charge s with respect to Phase 2

— Lo n gfibre Road Improvement Projects e. PPI s h all, within thirty (30) da ys following written request by the City, ma ke a cash payment to the City for the down payment portion of the SIED f unded improvements of $10,493. The failure to perform may result in the su s pension or t e rmination of any or all S IED funded activities.

. . . . 8. Attorne y’ s Fees

. In the event t hat any lawsuit is instituted by either party to this Agreement arising out of or p ertaining to this Agre e ment, including any appeals and collateral actions relative to suchNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

14 law suit, the substantially prevailing party as determined by the court shall be entitled to r eco ver its reaso nable attorney ’ s fees, expert witness fees, and all costs and expenses incu rre d relative to such lawsuit from the substantially nonprevailing party , i n addition to su ch other relief as may be a warded.

. . . . 13. Reservation of City Authorit y . As required by RCW 36.70B. 1 70(4) , and notwithstanding the terms of this Agreement, Union G ap reserves the right to establish and impose new or different regulations or to impose n ew mitigating meas u res to the extent required to a d dress a serious threat to pu b lic heal th or safety.
CP at 60 5

- 08. Printing Press contends that t he development a greement does not cover the eastern portion of its land. Union Gap claims it would not have executed the development agreement and participate d in the extension of Longfibre Road and the improvements along Longfibre Road without the development agreement covering all of Printing Press’ land. In the fall of 2012, a Lowe’s store proposed to move its retail location from Union Gap to Yakima. Printing Press believes that Union Gap has retaliated to render Lowe’s move costly, such as thwarting access from th e store directly to Valley Mall Boulevard. Union Gap does not deny the tax implications stemming from Lowe’s change in locations, but denies any reprisal

. Printing Press and Lowe’s entered into a contract under which Lowe’ s constructed a new retail stor e , whose footprint lies inside both the wedge and the eastern portion of the land . U nder Printing Press ’ agreement with Lowe’s, if Printing Press secures a permit for direct access of a driveway o nto the b oulevard , within five years of Lowe’s openingNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

15 busi ness, Lowe’s will reimburse Printing Press for all driveway c onstruction and
pe rmitting costs up to $170,000

. Printing Press thereafter commenced steps to gain direct access to Valley Mall Boulevard. Consistent with the d evelopment a greement, Printing P ress Properties submitted permit applications to the c ity of Union Gap in early 2015 to construct a d riveway with

access o nto Valley Mall Boulevard

. Union G ap describes its review of that application with a declaration from the Union Gap Director of Publi c W orks & Community Development Dennis Henne, who testifie d : Union Gap spent significant time reviewing this application and meeting with consultants to determine whether it would be safe to grant this permit and whether it met applicable highway requirem ents. For instance, Union Gap consulted with HLA Engineering and Land Surveying regarding safety concerns over sight, distance, and speed, and ultimately determined that the proposed project did not meet generally acceptable design practices for an Interm odal Connector and was unsafe. The American Association of State Highway and Transportation Officials (ASSHTO) Policy on Geometric Design of Highways and Street s , provide guidance to the designer by referencing a range of values for critical dimensions. The manual recommends a minimum sight distance for passing decisions on a designed 45 [m.p.h.] Rural and Urban Arterial to be 1625 (ft), more than double the sight distance of the proposed [ Printing Press Properties ] driveway.
CP at 240

- 41. Union Gap w orries about low or short sightlines on the b oulevard due to undulations in the road caused by the bridge over the train tracks

. Union Gap claims drivers on the boulevard that would slow or stop at Lowe’s driveway could cause rear

-No. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

16 end collisions and traff ic congestion. Printing Press disputes the safety concerns about access to its land from Valley Mall Boulevard and criticizes Union Gap Public Works
Director Dennis Henne for lacking a professional engineer’s license. On August 25, 2015, Union Gap sent Printing Press a letter denying the access permit application. On S eptember 15, 2015, Printing Press submitted a letter to Union Gap withdrawing its application. Printing Press chose not to appeal and subsequently submitted another application to the ci ty of Yakima. The city of Yakima approved two permits for Printing Press . The first permit authorize s excavation for the proposed d riveway and demolition of existing b oulevard improvements, including sidewalks and curbing. Yakima also issued an engine ering permit to construct the driveway. Printing Press then dedicated an easement on its land to the public for the driveway. Yakima officials did not share the safety concerns expressed by Union Gap about Printing Press’ land’s access to Valley Mall Bou levard. Union Gap notified Printing Press in writing that Union Gap, not Yakima, controlled access to the b oulevard and that Printing Press lacked auth ority to construct the d riveway. Nonetheless, Printing Press started construction , but stopped short of cutting curbs or sidewalks and accessing the b oulevard.
PROCEDURE
U nion Gap filed suit against Printing Press to obtain an injunction precluding Printing Press from cutting curbing along Valley Mall Boulevard and building a drivewayNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

17 to access the b ou levard. Union Gap asserted a cause of action for breach of the development agreement . U nion Gap alleged that a Washington city may control real property it owns an d a private party cannot force a city to allow direct access to a road the city owns when: (1) the private landowner lacked access to the road before the city improve d the road , (2) the private landowner signed a contract that prohibited direct access onto the road, (3) the city provided, at great expense, alternative access to the private land from an adjacent public road , and (4) the city purchased the land, on which the road sits, in fee title from the private landowner. In response, Printing Press emphasized that it s land lies entirely in side the jurisdiction of the city of Yakima and
Yakima holds authority to determine access from the north of the boulevard. P rinting Press also contended that Union Gap’s failure to appeal , under the Land Use Petition Act (LUPA), chapter 36.70C RCW, the city of Yakima’s approval of the grade and access permi ts to construct the d riveway bars this suit as untimely

. Union Gap and Printing Press filed cross

- motions for summary judgment. By its motion, Union Gap requested an order declaring that Printing Press lacked a legal right to open an access driveway fro m its property to Valley Mall Boulevard. Union Gap also sought an injunction precluding Printing Press from cutti ng the curb along the boulevard

. Printing Press, by its summary judgment motion, sought dismissal of all of Union Gap’s claims.No. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

18 The trial c ourt granted Printing Press’ motion. T he trial court concluded that Union Gap could not regulate outside its jurisdiction and that the d evelopment a greement covered only the wedge. Pursuant to the parties’ contract, the trial court granted Printing
Press reasonable attorney fees and costs as the prevailing party.
LAW AND ANALYSIS Under familiar principles of summary judgment jurisprudence, this reviewing
court reviews an order for summary judgment de novo. Keck v. Collins , 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). We must determine whether “ ‘ the ple adings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitl ed to a judgment as a matter of law. ’ ” Parkin v. Colocousis , 53 Wn. App. 649, 653 , 769 P.2d 326 (1989) (quoting CR 56 ( C ) )

. Both parties sought summary judgment before the trial court. Neither party contends disputed facts preclude a grant of summary jud gment. Land Use Petition Act Printing Press asks that this court deny review of the merits of the city of Union Gap’s appeal. Printing Press observes that Union Gap failed to appeal the city of Yakima’s decision to is sue permits for the d riveway, and, thus, Printing Press asserts that Washington’s LUPA bars this suit. Because of the nature of Union Gap’s suit, we disagree.No. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

19 L UPA pertains to judicial review of all land use decisions with some exceptions noted in the statute. RCW 36.70C.010

- . 030; Chela n County v. Nykreim , 146 Wn.2d 904, 916, 52 P.3d 1 (2002). In enacting LUPA in 1995, the Washington L egislature determined that LUPA “shall be the exclusive means of judicial review of land use decisions, ” with certain specific exceptions. RCW 36.70C.030 (1) ; Chelan County v. Nykreim , 146 Wn.2d at 917 (emphasis and footnote omitted)

. LUPA bars a land use petition , and the court may not grant review of the petition unless the petition er file s the petition with the court within twenty

- one days of the issua nce of the land use decision. RCW 36.70C.040(3); Asche v. Bloomquist , 132 Wn. App. 784, 799, 133 P.3d 475 (2006). LUPA’ s statute of limitations begins to run on the dat e an agency issues a land use decision, and even illegal decisions must be challenged in a timely, appropriate manner. Habitat Watch v. Skagit County , 155 Wn.2d 397, 407

- 08 , 120 P.3d 56 (2005)

. Union Gap never filed an appeal , let alone a timely appeal, of the permits issued by Yakima to Printing Press. We agree that the city of Yakima’s issuance to Printing Press of the excavation and engineering permit s constitute d land use decisions. A “land use decision” i ncludes : a final determination by a local jurisdiction ’ s body or officer with the highest level of authority to make the determinat ion, including those with authority to hear appeals, on: (a) An application for a project permit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used

. . . .

. . . .No. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

20 (c) The en forcement by a local jurisdiction of ordinances regulating the improvement, development, modification, maintenance, or use of real property. RCW 36.70C.020(2) (emphasis added). We hold, however, that LUPA does not control Union Gap’s suit. The city of Union Gap does not directly challenge the issuance of the permits by Yakima. Union Gap instead seeks to enforce its contract rights. If a cause of action arises independently of the relevant land use petition, the claim is not barred. Asche v. Bloomqui st , 132 Wn. App. at 800 (2006). Claims that do not depend on the validity of a land use decision are not barred. Asche v. Bloomquist , 132 Wn. App. at 800. Printing Press labels Union Gap’s suit “a collateral attack” on a land use decision. Printing Pr ess claims that the current lawsuit would be unnecessary but for the issuance of the permits. According to Printing Press, barring Union Gap’s suit as untimely would serve LUPA’s and Washington’s stated policy of favoring administrative finality in land

u se decisions. Samuel’s Furniture, Inc. v. Department of Ecology , 147 Wn.2d 440 , 458, 54 P.3d 1194 (2002)

. Printing Press contends that Holder v. City of Vancouver , 136 Wn. App. 104, 147 P.3d 641 (2006) and Asche v. Bloomquist , 132 Wn. App. 784 (2006) co mpel a conclusion that Union Gap’s litigation arises directly from the permits issued by the city of Yakima and thereby LUPA controls. In Asche , a neighboring property owner failed to file a LUPA appeal related to the issuance of a county building permit for residentialNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

21 construction on an adjoining property. Printing Press emphasizes that the court, in Asche , recognized the interests of an adjacent property owner and determined that injunctive relief was available through a LUPA appeal. Nevertheless, we distinguish Asche because the neighboring property owner challenged the issuance of the permit on the basis that the county violated its zoning code when issuing the permit. The property owner did not assert any right under a contract or independent of th e county code.
In Holder v. City of Vancouver , a property owner challenged the city of Vancouver’s hearing examiner’s order holding that he violated a city ordinance by parking and storing vehicles on unimproved surfaces. The court refused to entertain the suit because the property owner abandoned any claim under LUPA and LUPA controlled the challenge to the hearing examiner’s decision. Woods View II, LLC v. Kitsap County , 188 Wn. App. 1, 352 P.3d 807 (2015) bears more relevance to Union Gap’s suit. A developer alleged that Kitsap County negligently delayed the issuance of building permits. The county argued that its permitting actions could be challenged only under LUPA and the developer’s failure to appeal under LUPA barred the suit. This court agr eed with the developer that LUPA d id not bar its action
because it sought monetary compensation rather than a modification of a land use decision

. If Union Gap limited its claims to an argument that the city of Yakima lacked authority to issue the permit s to Printing Press or that Yakima violated its code whenNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

22 issuing the permits , we might agree with Printing Press. Nevertheless, Union Gap’s suit rises i ndependently of the Yakima permits. Union Gap relies on its contract with Printing Press, which contr act the parties entered outside of and before the city of Yakima’s permit issuances. If Printing Press started construction on the d riveway in the absence of any permit, Union Gap would have filed this same suit alleging breach of contract under the parti es’ d evelopment a greement. Printing Press contravenes the intent of LUPA by using the act as an excuse to shirk its contractual obligations under the development agreement with Union Gap. Printing Press unders cores that Union Gap seeks to enjoin the exerc ise of the rights granted by the Yakima permits. Nevertheless, Union Gap does not seek to enjoin enjoyment of the permits because of any fault in the issuance of the permits, but because Printing Press’ claimed rights coincide with the rights Printing Pre ss surrendered under the development agreement. We analogize to a hypothetical situation under which a neighborhood contains restrictive covenants prohibiting the h arboring of large commercial animals. Harry Smith, who resides in the neighbor hood , seeks and obtains a variance to the city zoning code, which variance permits his building of a cow pen. Smith intends to raise beef cattle for sale to others. Smith’s neighbor, Betty Ross, does not appeal the issuance of the city permit. Instead Ross sues Sm ith for violating the restrictive covenants. LUPA shouldNo. 34740

- 1

- III City of Union Gap v. Printi ng Press Properties, LLC

23 not bar the enforcement of private agreements concerning the use of land. Ross does not challenge the city’s authority to issue the permit. The Development Agreement We now address the merits of city of Union Gap’s appeal. Union Gap asserts numerous arguments. Union Gap contends that Printing Press would breach the development agreement by cutting access to Valley Mall Boulevard from its land. Union Gap maintains that , apart from the developme nt agreement, it possesses authority as the landowner, under which the b oulevard runs, to preclude access to the b oulevard. Union Gap posits that the deed from Printing Press to the city reserved no access rights or easement allowing entrance to the boule vard. Union Gap argues that the city of Yakima assigned Union Gap the right to control access to the b oulevard even from property located inside the city limits of Yakima. In response to Union Gap’s appeal, Printing Press contends that Union Gap lacks

r egulatory authority to preclude access to the b oulevard. Printing Press also argues that any prohibition contained in the development agreement to access Valley Mall Boulevard concerned only the wedge and not the eastern portion. Printing Press wishes to place the access point to Valley Mall Boulevard inside the eastern portion. Printing Press also contends that any prohibition on access to the boulevard is precatory, not mandatory, in nature. Printing Press furthermore argues that the development agree ment could not apply to its property because a city may only enter a development agreement for landNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

24 inside its city limits. Finally, Printing Press asserts that , as an abutting landowner , it is entitled to access to West Valley Mall Boulevard and the city of Yakima authoritatively granted it access. We hold that the development agreement between the city of Union Gap and Printing Press precludes Printing Press direct access to the boulevard. Therefore, we do not address Union Gap’s other contentions. Union Gap and Printing Press signed a development agreement seven years after Printing Press conveyed the subject land to Union Gap for Valley Mall Boulevard. Union Gap contends that the agreement grants it the prerogative to deny access to the boulevard from Printing Press land. We repeat the access subsection or subsection i that controls the appeal: i. PPI acknowledges that provisions of UGMC Chapter 9.34 may prohibit direct access to Valley Mall Boulevard. Any access to the property from Valley Ma ll Boulevard shall be subject to municipal review and conditioning at time of project permit application. CP at 605 (e mphasis added). Union Gap further contends that section i encompasses Printing Press ’ entire tract

. Printing Press argues that the par ties intended the development agreement , particularly the access subsection, to govern only the wedge portion originally located within Union Gap C ity limits. Printing Press also contends that the language of the access subsection portends the possibility of granting of some access because the wordNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

25 “may , ” preceding the word “prohibit , ” does not afford unlimited control. Printing Press contends the word “may” recognizes some uncertainty as to whether Union Gap has legal authority to deny access to Valley M all Boulevard outside its jurisdiction and that, in fact, Union Gap lacks such authority. Our task is to discern the intent of the parties to the development agreement. Kelley v. Tonda , 198 Wn. App. 303, 311, 393 P.3d 824 (2017)

. This task entails our selecting principles of contract construction that helps us best discern the intent of the parties rather than impos ing a preferable outcome. Neither party asks us to construe the contract against the other party on the basis that the other party drafted the language. Neither party forwards any conversations during the negotiations or drafting of the agreement that would assist in construing the contract. Union Gap alleges it wou ld never have entered into the development a greement, nor have ameliorated Longfibre R oad, if it knew that Printing Press intended to disregard the contract and construct the d riveway over Union Gap’s objection. We find this testimony unhelpful because Union Gap provides no evidence that it stated this understanding to Printing Press. We do not consider a party’s unexpressed subjective intent. Grant C ounty Port Dist rict No. 9 v. Washington Tire Corp. , 187 Wn. App. 222, 233, 349 P.3d 889 (2015)

. We principally rely on three principles of contractual interpretation. First, a c ourt will view the contract as a whole, interpreting particular language in the context of otherNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

26 contract provisions. Viking Bank v. Firgrove Commons 3, LLC , 183 Wn. App. 706, 713, 334 P.3d 116 (2014)

. Second, c ourts must read each contract as an average person would read it without giving it strained or forced meaning. Mid

- Century Insurance Co. v. Henault , 128 W n .2d 207, 213, 905 P.2d 379 (1995). Third, we consider the actions of the parties subsequent to the signing of the contract as evidence of inte nt at the time of signing

. Higgins v. Stafford , 123 W n .2 d 160, 165, 866 P.2d 31 (1994); In re Estate of Wimberley , 186 Wn. App. 475, 505, 349 P.3d 11 (2015)

. We first decide if the access subsection covers the entire tract, including the eastern portion

. The development agreement employs various terms when mentioning Printing Press’ real estate. The ever changing words both complicate our inquiry and provide clues in answering this question. The recording cover sheet does not use any term for Printin g Press’ land other than “legal description, abbreviated form.” CP at 403. The legal description on the cover sheet presumably describes the entire tract. The first page of the development agreement also contains no term for the land and repeats the sam e abbreviated legal description. Nevertheless, the first page adds the sentence: “ Complete l egal description is attached as Exhibit A to this document. ” CP at 404. Then, to Printing Press’ advantage, Exhibit A reads: That part of the: southeast quarte r of the so uthwest quarter o f the sout heast quarter of Section 31, Township 1 3 North, Range 18 East W

. M., lying westerly of the city limits of Yakima, Washington.No. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

27 CP at 413 ( e mphasis added). The wedge was then Printing Press’ only property west of the Y akima limits. Printing Press astutely argues that the attached legal description shows the intent to limit coverage of all provisions of the development agreement to the wedge , particularly when the cover page refers to this legal description as the “com plete” description

. Nevertheless, the first page of the agreement does not explicitly limit all of the terms of the development agreement to a select portion of Printing Press’ land or, in its body, define any term related to the land as limited to the we dge. For this reason and because the development agreement loosely employs terms related to Printing Press’ land, we disagree with Printing Press. The introductory paragraph to the development agreement indicates that the parties enter ed the agreement f or the purposes of establishing standards for “development of PPI [Printing Press] property.” CP at 404. The agreement nowhere expressly defines “PPI” property. No evidence suggests that Printing Press only sought to develop the wedge. Instead, the wed ge and the eastern portion are not distinct tracts and constitute one tax parcel. Lowe’s use of both the wedge and the eastern portion hints that Printing Press sought, at the time of the development agreement, to develop its entire tract. Recitals p ara graphs C and D reads: C. Whereas, Bud Cla ry Toyota of Y ak ima ( “ Clary ” ) and PPI are owners of real property located a t the intersection of Valley Mall BoulevardNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

28 and Longfibre Road and intend to develop such properties (the “ Subj ect Properties ” ); and D. Whe re as, the deve lopm ent of the S ubject Properties is facilitated by the extension of Longfibre Road and significant c ommunity benefits are derived from the further development of a traffic grid syste m, extension of public wat e r services and potential employm ent and tax revenues deriv ed from development; CP at 405. Finally, the development agreement imposes a term for property in quotation marks. The “subject properties” consists of the land owned by Clary and Printing Press at the intersection of Longfibr e Road and Valley Mall Boulevard that the respective landowners intend to develop. Although the wedge is close r than the eastern portion to the proposed intersection of Longfibre Road and Valley Mall Boulevard, the entire tract constituted one unified par cel when the parties signed the development agreement. The eastern portion also constitutes land owned by Printing Press at the intersection , when we consider Printing Press’ property as a whole . More importantly, as already indicated, Printing Press int ended to develop its entire tract. Paragraph one of the body of the agreement declares:
1. Proposed Private Development

. PPI o wn s or controls certain real properties located in the City of Union Gap , commonly known as the PPI site, legally described on Exhibit “A” attached hereto and incorporated herein by this reference. I t is the intent of PP I to sell and/or deve lop the subject pro perty with commercial or light industrial land uses consistent with applicabl e municipal d evelopment standards.
CP at 40 5 ( e mphasis added). Again, Exhibit A legally describes only the wedge. But we note that paragraph one refers to the wedge as the PPI “site,” not the “property,” aNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

29 nomenclature that suggests that “property,” when used in the agreement includes land
more t han the wedge. The second sentence in paragraph one could be read to imply that the word “site” coincides in meaning with the word “subject property.” Nevertheless, PPI intended to develop the eastern portion for commercial uses. Lowe’s is a commercial

use. We move to paragraph 2 of the agreement, which reads:
2. Amendment of Municipal Boundaries

. The PPI property is currently subject to split jurisdiction between City of Yakima and City of Union Gap. The approximate location of the current munici pal bounda ry is s et forth on attached Exhibit B. . . . I t is agreed that the entire PPI parcel will b e incorporated into th e City of Y akima. All of the road right

- of

- way improvements for Longfibre Road as i t extends north from Valley Mall Boulevard shall be within the jurisdiction of the City of Un ion Gap.
CP at 405 ( e mphasis added). This paragraph strongly intimates that the term “ property ” includes the entire tract and the development agreement cover s the entire tract. The first sentence mentions th at the “PPI property” lies in both the city of Yakima and the city of Union Gap. At the time of the development agreement, only the eastern portion lay inside Yakima. In the third sentence, the term “parcel” is used for the first time. The paragraph doe s not refer to the PPI “site” as described in Exhibit A. T he parties agree , in the third sentence, to place the “entire PPI parcel ” inside the jurisdiction of Yakima. Thus, the agreement necessarily addresses the status of Printing Press’ entire tract. Important to our ruling is Exhibit B to the development agreement. The exhibit is a map of the area. The map imposes the label “PPI P roperty” inside the eastern portion.No. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

30 This label establishes an intent to consider PPI’s property, for purposes of the d evelopment agreement, as the entire tract.
W e come now to the critical subsection 3, which declares:

c. PPI shall incorporate the f ollowing access management requirements into all site development plans: i. PPI acknowledges that provisions of UGMC Ch apter 9.34 may prohibit direct access to Valley Mall Boulevard. Any access to the property from Valley Mall Boulevard shall be subject to municipal review and conditioning at time of project permit application.
CP at 406 ( e mphasis added). The first se ntence recognizes the potential of no direct access to Valley Mall Boulevard. The language does not suggest any section of the entire tract automatically receive s direct acces s . If the parties wished the access subsection to deny access only from the wed ge, the parties could have referred to “the PPI site described on Exhibit A” as it did in paragraph one of the agreement. A ccording to the second sentence, Union Gap must approve “any access to the property from Valley Mall Boulevard.” CP at 406 (emphasi s added)

. Throughout the development agreement, the term “property” typically refers to the entire tract. Exhibit B particularly labels the east land as “PPI Property.” Conceivably “municipal review” in the last paragraph could re fer to review by the ci ty of Yakima, but we consider such a construction strained since the first sentence already refers to that portion of the Union Gap M unicipal C ode establishing Union Gap’s review of plan s for access to an arterial. The remainder of section 3c of the deve lopment agreement details access pointsNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

31 from “PPI P roperty” to Longfibre Road. No language in the development agreement discloses details for any access to Valley Mall Boulevard. If Printing Press retained some right to direct access to Valley Mall Boule vard, one might expect the parties to delineate that important right, together with the particulars of the right, in the development agreement. Other reasons bolster our decision that the development agreement precluded direct access from the eastern por tion to V alley Mall Boulevard without a permit from
U nion Gap. The eastern portion lies closer to the bridge over the railroad tracks than the wedge. More reason exists to deny access from the eastern portion. Printing Press has not forwarded any reason to permit access to Valley Mall Boulevard from the eastern portion, but not the wedge. The development agreement’s principal, if not sole , purpose was to improve access to Printing Press ’ entire tract by improving Longfibre Road. Opening another portio n of the entire tract to access Valley Mall Boulevard conflicts with this purpose. Finally , in construing the development agreement, we note that Printing Press first applied to Union Gap for a permit allowing direct access to Valley Mall Boulevard befor e Printing Press sought a permit from the city of Yakima. Thus, as illustrated by its subsequent actions, Printing Press also read the development agreement to apply to its entire tract, not only the wedge. We next examine whether access subsection, sub section 3.c.i., otherwise permitsNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

32 Union Gap to deny Printing Press’ eastern portion access to Valley Mall Boulevard. According to Printing Press, the development agreement simply rec ognizes that UGMC Chapter 9.34 “ may prohibit ” direct access to Valley Mal l B oulevard. CP at 605. Whether in fact the Union Gap M unicipal C ode actually can prohibit access is a different question. The phrase “may prohibit” only acknowledges the possibility of Union Gap’s ability to prohibit access and to determine whether tha t possibility can come into fruition requires an examination as to the powers of Union Gap to act outside its jurisdiction. The only law cited by Printing Press for the proposition that Union Gap cannot extend the provisions of its municipal code to land in the city of Yakima is Wash ington Constitution article XI, § 11. Art icle XI, § 11 declares: Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with gene ral laws. Printing Press cites no case decided under the constitutional provision, let alone a case that suggests that Union Gap violates this constitutional section under the appealed circumstances. We observe that Union Gap does not seek to impose its municipal code on land outside its city limits without permission from the landholder. By signing the development agreement and for valuable consideration, Printing Press consented to the application of the code provisions. In this sense, Union Gap and Printing Press merely incorporated by reference the standards of the municipal code as part of the contractNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

33 terms. Union Gap does not seek to enforce a regulation outside its limits. The city instead seeks to enforce a contractual term. Printing Press c ites no case that precludes a city and a landowner outside the city limits from contracting to apply a municipal code section to the contracting relationship. Wilson v. City of Mountlake Terrace , 69 Wn.2d 148, 417 P.2d 632 (1966) minimally supports our p osition. Mountlake Terrace adopted a city ordinance authorizing the insertion of a fluoride chemical into the city’s potable water supply. A.P. Wilson and others resided outside the city limits. Nevertheless, due to a connection in pipes between the cit y’s water system and the water district system that served Wilson and his neighbors, residents outside city limits would also receive fluoridated water. Wilson and others sued and alleged that the city sought to exercise its police power over land outside city limits. The Supreme Court disagreed. The court noted that the city did not exercise its police power over land outside city limits, but instead the fluoridation resulted from a contract between the city and the water district. Wilson’s receipt of fluoridated water was incidental to the city’s exercise of its police power in furnishing fluoridated water to its inhabitants. Union Gap’s prohibition of cuts along Valley Mall Boulevard results from a contract with Printing Press , not necessarily the a ssertion of police power jurisdiction outside city limits . Union Gap seeks to exercise its police power over Valley Mall Boulevard, a major thoroughfare that passes in part through its city limits. Printing Press’No. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

34 inability to gain direct access to the a rterial is incidental to Union Gap’s promotion of public safety of its residents and others traversing the boulevard. Finally, Printing Press argues that Union Gap lacked statutory authority to enter the development agreement, at least to the extent the agreement covers the eastern portion of land. Printing Press relies on RCW 36.70B.170, the statute that authorizes a city to enter a development agreement. The statute reads, in pertinent part: A local government may enter into a development agreement wi th a person having ownership or control of real property within its jurisdiction. A city may enter into a development agreement for real property outside its boundaries as part of a proposed annexation or a service agreement. RCW 36.70B.170(1). Printin g Press highlights that its eastern portion lies outside city limits. Printing Press’ argument ignores some critical facts. First, at the time of the execution of the development agreement, i ts property lay in part inside the city limits of Union Gap. Yakima later annexed the wedge, which was not a distinct parcel at the time Printing Press signed the agreement. Printing Press cites no law supporting a conclusion that a city cannot enter into a development agreement that covers an entire tract of land , part of which lies within city limits and part which lies outside city limits. Printing Press cites no legal authority that the development agreement, or a paragraph thereof, becomes void if the property leaves the city limits after execution of the agre ement.No. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

35 REMEDY As part of its summary judgment motion, Union Gap requested that the trial court
enter a declaration that Printing Press would violate the development agreement by building the driveway and an injunction enjoining Printing Press from constr ucting the driveway on its land. Because the trial court granted Printing Press a summary judgment dismissing Union Gap’s complaint, the trial court did not address any remedies. Union Gap asks for injunctive and declaratory relief on appeal. In its res ponding appeal brief, Printing Press does not address Union Gap’s request for an injunction or declaratory order. Under Washington’ s Unif orm Declaratory Judgments Act, c hapter 7.24 RCW, the court may enter a declaratory order when there is a justiciable controversy: (1) which is an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement , (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, rather than potential, theoretic al, abstract or academic, and ( 4) a judicial determination of which will be final and conclusive. Diversified Indus tries Development Corp. v. Ripley , 82 Wn.2d 811, 815 , 514 P.2d 137 (1973). We conclude that this lawsuit presents an actual, present and existing dispute between Union Gap and Printing Press regarding Valley Mall Boulevard access. The parties hold genuine and opposing interests , which are direct and subst antial, regarding the partial demolition of the curbNo. 34740

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- III City of Union Gap v. Printi ng Press Properties, LLC

36 along Valley Mall Boulevard. The cut in the curb and resulting traffic would damage Union Gap ’s prope rt y and conflict with Union Gap’ s plans and safety concerns. A ny judicial determination of the parti es’ rights and obligations under the development agreement will be final and conclusive. Under RCW 7.24.080, a c ourt possesses authority , in a declaratory judgment action, to issue f urther relief in addition to entering a declaratory judgment. That reli ef includes a permanent injunction. Ronken v. B oard of C ounty Comm issioners of Snohomish C ounty , 89 Wn.2d 304, 311, 572 P.2d 1 (1977)

. A court may issue a
pe rma nent injunction t o prevent a trespass. Hedlund v. White , 67 Wn. App. 409, 418, 836 P.2d 250 ( 1992)

. An injunction is appropriate to prevent damage to real property. Vander Vate v. Watson , 19 Wn.2d 68, 71, 140 P.2d 964 (1943)

. We agree with Union Gap that the law affords it declaratory and injunctive relief. Union Gap seeks a prohibition again st Printing Press constructing its driveway. We modify this request. Printing Press may build whatever driveway it wishes on its land consistent with Yakima’s regulations. But Printing Press may not cut the curb or sidewalks along Valley Mall Boulevard or gain direct access from its land to the boulevard.
ATTORNEY FEES The development agreement afford s the prevailing party reasonable attorney fees and costs. The trial court awarded Printing Press reasonable attorney fees and costs onNo. 34740-1-III City of Union Gap v. Printing Press Properties, LLC

entry of the summary judgment order favoring Printing Press. We reverse the award of
reasonable attorney fees and costs to Printing Press. We grant Union Gap reasonable attorney fees and costs on appeal and for fees incurred before the superior court.
CONCLUSIONS
We reverse the summary judgment order favo~ing Printing Press and grant judgment to Union Gap on its contract claim

. We remand to the superior court to enter

an injunction precluding Printing Press from cutting the curb or sidewalks of Valley Mall
Boulevard or gaining direct access from its land to the boulevard. We also remand to the superior court to determine the amount in reasonable attorney fees and costs to be
awarded Union Gap as the prevailing party and for fees incurred at both the trial court
and appeals court level.

WE CONCUR:

Pennell , J.

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