Robert Matichuk, App. vs. Whatcom County, Et Ano., Resps.

'dRT OF APPEALS 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 of Whatcom
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UNPUBLISHED OPINION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 against Whatcom 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 all economically viable use of his property, we affirm the trial court's
order on summary judgment dismissing 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 another two 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 of the
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 construct three residences on the 4 lots that remained
undeveloped. 	Matichuk applied for a building permit to 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.
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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 of law.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, it also entered final judgment in accordance 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).
5 Briqqs, 166 Wn.2d at 801; CR 56(c).
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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 of law.6 A party opposing a request for 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 of material fact.7
The party opposing a motion for summary judgment 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 of the 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
6 Young 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).
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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 summary judgment
based on the fact that he sold lots 18, 23, and 24. 	He claims that the court's ruling
was based upon mere speculation that these undeveloped lots added some value 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 higher purchase price
because of the larger lots. 	At the very least, he argues a question of fact 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 of all economically beneficial use of his property. 	Matichuk
did not directly respond to this argument. 	He simply maintained that because the
County denied his applications for permits to build two additional homes, he could do
nothing with those lots and their "best and only use" was as additional yard space for
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 the value 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).
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No. 69105-8-1/7
someone looking for a larger lot to go with their house would benefit from that extra
space."
Counsel 	for 	Matichuk 	also 	acknowledged 	that the 	record 	included 	no
evidence to establish if or to what extent the value of the homes on the combined
lots was affected by the addition of adjoining undeveloped property. 	Matichuk did
not produce the purchase and sales agreements or any other evidence of the sales
price of either home. 	He did not submit any appraisals or other evidence to provide
a basis to compare the value of the homes with and without additional undeveloped
land. 	Counsel stated that he did not believe that the incorporation of lot 18 would
have made a "tremendous difference on value" with respect to the home built on lot
17 because both were small parcels. 	He admitted that consolidation of the 3 lots,
however, did create a "fairly large" parcel. 	When the court asked what evidence
Matichuk relied upon to argue that the purchase price was the same he would have
received without the lot consolidation, he failed to identify any evidence.
On appeal, Matichuk points out that in 2008, when he sold the home on the 3
consolidated lots, he entered into a supplemental agreement with the purchasers to
allow him to reacquire lots 23 and 24 in the event that the County reversed its
permitting decision. 	He focuses on the fact that this agreement recites that lots 23
and 	24 were 	conveyed to the 	buyers, 	in 	addition 	to 	lot 22, 	"for no additional
consideration." 	Matichuk contends that this evidence supports the inference that he

No. 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 defeat the County's motion for summary judgment, Matichuk had
the burden of producing competent evidence to establish the elements of his 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
built homes 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
without the additional adjacent property. 	The supplemental agreement providing for
reconveyance of lots 23 and 24 and reciting "no additional consideration" for those
lots does not, in and of itself, establish that the adjacent lots added no value to the
property. 	And, of course, the agreement pertains to only one of the consolidated
parcels at issue.12
Because Matichuk failed to meet his burden to produce evidence to establish
that the zoning ordinance deprived him of the ability to make some economically
12 	Because of our conclusion 	that 	Matichuk 	failed 	to produce sufficient
evidence to defeat a motion for summary judgment 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 of the property.
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No. 69105-8-1/9
viable use of his property, the trial court did not err in granting summary judgment on
Matichuk's taking claim.
We affirm.
WE CONCUR:
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