UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE

NO. C92-1634Z
MINUTE ORDER
DOCKET No. 311

MARK STEVEN FAVRO, at al.,
Plaintiffs,
v.
THE PORT OF SEATTLE, a municipal corporation,
Defendant.
The following Minute Order is made by direction of the Court, the Honorable Thomas S. Zilly, U.S. District Judge:

(1) The Court DENIES the Port's motion for summary judgment dismissing the claims of the avigation easement grantors (docket no. 190) and supplemental motion for summary judgment dismissing inverse condemnation claims of grantor plaintiffs (docket no. 208). The Court finds that the waiver language in the avigation easements cannot reasonably be interpreted as a waiver of claims for damages arising prior to the granting of the easements. The waiver provision in the avigation easement only bars later claims for damages, except those claims allowable under the terms of the easement itself, or the terms of the Port's 1993 form easement, which the Port has made applicable to pre-1993 easements.

(2) The Court DENIES the Port's motion for partial summary judgment re: pre-1988 damages (docket no. 215). The Court rules that the applicable statute of limitations for the tort claims shall apply to those claims remaining for trial.

(3) The Court GRANTS the Port's motion for partial summary judgment re: federal claims and avigation easement transaction assistance claims (docket no. 242). For the

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reasons stated below, the Court DISMISSES plaintiffs' first and second causes of action for substantive and procedural due process in their Third Amended Complaint.

"To establish a violation of substantive due process, the plaintiffs must prove that the government's action was clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Sinaloa Lake owners Assn. v. Simi Valley, 882 F.2d 1398, 1407 (9th Cir. 1989), cert. denied sub nom., 494 U.S. 1016 (1990) (citation omitted). Where the plaintiffs bring substantive due process claims to challenge governmental action that does not impinge on fundamental rights, the Court need only look to see whether the government could have had a legitimate reason for acting as it did. Halverson v. Skagit County 1994 U.S. App. LEXIS 34576 at *13 (9th Cir. December 12, 1994) (emphasis in original). [Footnote 1] Here, the plaintiffs. base their substantive due process claim on the Port's "promoting, authorizing and conducting of aircraft operations at Sea-Tac," Third Amended Complaint at 49, resulting in increased noise, vibration, and pollution, and the Port's failure to initiate condemnation proceedings pursuant to the Washington Constitution and state statutes prior to subjecting plaintiffs' property to these adverse effects. The Court concludes that no reasonable jury could find that the Port's promotion of aircraft operations at Sea-Tac and its failure to initiate condemnation proceedings as to these plaintiffs was "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Sinaloa, 882 F.2d at 1407. Further, the Court concludes that no reasonable jury could conclude that the Port could not have had a legitimate reason for taking these actions. As a result, plaintiffs' substantive due process claims must be dismissed.

Plaintiffs' procedural due process claim is premised on the Port's failure to provide pre-deprivation notice and opportunities to be heard. "Ordinarily, due process of law requires [notice and] an opportunity for some kind of hearing prior to the deprivation of a significant property interest." Halverson, 1994 U.S. App. LEXIS 34576 at *7-8 (citation omitted). When the action complained of, however, is "legislative in nature, due process is satisfied when the

[Footnote 1: In Halverson, the Ninth Circuit noted that "this is not a takings case, in which we must balance the public interest supporting the government action against the severity of the private deprivation." 1994 U.S. App. LEXIS 34576 at *13-14. The plaintiffs in Halverson, like the plaintiffs here, asserted federal claims for substantive and procedural due process, together with a state claim for inverse condemnation, but did not assert a federal takings claim.]

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legislative body performs its responsibilities in the normal manner prescribed by law." Id. at *8. Actions are "legislative in nature" where they affect large areas and are not directed at one or a few individuals. Id at *8-9. Here, there is no doubt that the Port's promotion and operation of aircraft operations at Sea-Tac and formulation of policy concerning compensation for homeowners affected by aircraft operations were actions that were legislative in nature. Thus, general notice as provided by law is sufficient to satisfy due process. The plaintiffs have failed to cite any authority imposing uponthe Port the notice and hearing requirements contemplated by plaintiffs, nor have they alleged that the Port failed to follow any well established state law notice and hearing requirements. As a result, plaintiffs procedural due process claims must be dismissed.

The Court does not address the Port's motion for partial summary judgment as to plaintiffs' avigation easement transaction assistance claims because the plaintiffs have clarified that none of their claims is predicated on the Port's transaction assistance program or the acquisition of avigation easements.

(4) In view of the Court's dismissal of plaintiffs' procedural and substantive due process claims, the Court STRIKES the Port's motion for partial summary judgment on plaintiffs §1983 claims (docket no. 232) as moot.

(5) The Court DEFERS to trial plaintiffs' motion for summary judgment on the interference element of plaintiffs' inverse condemnation and nuisance claims, docket no. 234. There are material issues of fact as to whether individual plaintiffs have established sufficient interference with the use and enjoyment of their properties. Martin v. Port of Seattle, 64 Wn.2d 309, 319, 391 P.2d 540 (1964), cert. denied, 379 U.S. 989 (1965) (inverse condemnation); Highline School District v. Port of Seattle, 87 Wn.2d 6, 17-18 n. 7, 548 P.2d 1085 (1976) (nuisance).

(6) The Court GRANTS in part and DENIES in part the Port's motion for partial SUMMARY judgment re: plaintiffs' tort claims (docket no. 239) . The Court GRANTS the Port's motion as to plaintiffs' tort claims for injury to property rights. The Court DENIES the motion as to plaintiffs' tort Claims for personal injuries and other injuries unrelated to loss of property rights.

The Court rejects the Port's argument that plaintiffs' exclusive remedy is inverse condemnation, and that they are prohibited from bringing any claims in tort. In Highline, 87 Wn.2d at 17, the Washington Supreme Court held that "where the recovery sought is only for loss of property rights, not personal or other injuries," plaintiffs may nor rely on

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traditional tort theories. The court stated further: "[W]here a plaintiff seeks to recover damages for other then [sic] loss of property rights or where the defendant is not an entity which eminent domain principles apply, the nuisance remedy is still available." Id. at 17-18 (emphasis added). Thus, under Highline, the plaintiffs are precluded only from bringing tort claims based on damage from loss of their property rights. Plaintiffs are not precluded from bringing ... recover for alleged personal injuries, and other injuries unrelated to the loss of property rights, resulting from noise, noxious fumes and particles, or vibration, such as loss of hearing, asthma, and mental distress. Plaintiffs' trespass and nuisance claims are limited, therefore, to personal injuries resulting from the interference with their property and other injuries not otherwise compensable in an inverse condemnation action. Plaintiffs' damages to property rights are recoverable only under their claim for inverse condemnation.

The Court further DENIES plaintiffs' motion to dismisses plaintiffs' trespass claim. Plaintiffs have made a sufficient showing of interference with exclusive possession of their property to withstand summary judgment.

(7) The Court DEFERS ruling an the Port's motion for view of the Sea-Tac Airport by the jury (docket no. 248) until trial. The Clerk is directed to renote the Port's motion to February 13, 1995.

The Clerk of the Court is directed to send a copy of this Minute Order to all counsel of record.

Filed and entered this 27th day of January, 1995.

BRUCE RIFKIN, Clerk
By Casey Condon
Deputy Clerk

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