Newport Yacht Club v. City of Bellevue , 429 F. App'x 683 ( 2011 )

FILED
NOT FOR PUBLICATION APR 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEWPORT YACHT CLUB, a No. 10-35389
Washington nonprofit corporation,
individually and on behalf of its members, D.C. No. 2:09-cv-00589-RSL
Plaintiff,
MEMORANDUM*
and
WILLIAM S. WEINSTEIN and LEANNE
C. WEINSTEIN, and their marital
community,
Plaintiffs - Appellants,
v.
CITY OF BELLEVUE, a Washington
municipal corporation,
Defendant - Appellee.
NEWPORT YACHT CLUB, a No. 10-35403
Washington nonprofit corporation,
individually and on behalf of its members, D.C. No. 2:09-cv-00589-RSL
Plaintiff - Appellant,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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and
WILLIAM S. WEINSTEIN and LEANNE
C. WEINSTEIN, and their marital
community,
Plaintiffs,
v.
CITY OF BELLEVUE, a Washington
municipal corporation,
Defendant - Appellee.
Appeals from the United States District Court
for the Western District of Washington
Robert S. Lasnik, Chief District Judge, Presiding
Argued and Submitted April 11, 2011
Seattle, Washington
Before: KLEINFELD, TASHIMA, and SILVERMAN, Circuit Judges.
Plaintiffs-Appellants William and Leanne Weinstein and the Newport Yacht
Club appeal the district court’s grant of summary judgment in favor of the City of
Bellevue. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and
reverse in part.
I. Source Control Budget Cap
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Paragraph 4.5 of the Settlement Agreement caps the City’s expenditures for
source control projects at $3,075,000—the amount listed on Exhibit C. Paragraph
3.1 requires King County to pay $2,150,000, minus a credit for work in the Cinder
Mine area, to the City for the County’s portion of the costs for the Coal Creek
Stabilization Project. “Portion” means “a part of a whole.” Webster’s Third New
International Dictionary 1768 (2002). The County’s payment to the City
represented its share of the costs listed on Exhibit C, not some amount in addition
to those listed costs. Extrinsic evidence cannot be relied upon to read a non-
existent term into the Agreement, such as a provision placing the risk of cost
overruns on the City. See Hearst Commc’ns, Inc. v. Seattle Times Co., 115 P.3d
262, 267 (Wash. 2005).
Under the only reasonable interpretation of the budget cap provision, the
City was required to spend a maximum of $3,075,000, inclusive of the County’s
payment, on source control projects. Because the Weinsteins and NYC do not
dispute that the City has spent this much, we affirm the grant of summary
judgment in favor of the City on this claim.
II. Sediment Capture Capacity
The Agreement obligates the City to increase sediment capture capacity by
1,500 cubic yards. Under Paragraph 4.3.1, this obligation is contingent upon
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receipt of all required permits and third-party approvals. The receipt of permits is
a condition precedent to the City’s obligation to increase capture capacity. See
Ross v. Harding, 391 P.2d 526, 531 (Wash. 1964). At the time the Weinsteins and
NYC filed this lawsuit, the City had not yet obtained the necessary permits;
therefore, the City’s obligation to build the sediment capture pond had not yet
arisen, and it could not be in breach. See id. (defining “condition precedent” as “a
fact which must exist or occur before a duty of immediate performance of a
promise could arise”). Moreover, the Weinsteins and NYC fail to make any
showing that the City’s pursuit of permits for an in-channel sediment capture pond,
as opposed to an off-channel pond, was not in good faith. We affirm the district
court’s grant of summary judgment in favor of the City on this claim.
III. Salmon Habitat Enhancement Project
The Agreement allows the Weinsteins to construct a “salmon habitat
enhancement project” on their property. Under Paragraph 7.2, the City may not
oppose the Weinsteins’ development of such a project, provided the project
complies with the Bellevue City Code. The City must also “cooperate with
Weinstein in securing” any necessary city permits for the project.
The phrase “salmon habitat enhancement project” is not defined by the
Settlement Agreement. Relying on a dictionary definition of “habitat,” the district
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court concluded that the phrase refers to a project that “improve[s] the place where
salmon is ordinarily found.” But “habitat” is also defined as “the kind of site or
region with respect to physical features (as soil, weather, elevation) naturally or
normally preferred by a biological species.” Webster’s Third New International
Dictionary 1017 (2002). The phrase “salmon habitat enhancement project” is
subject to more than one reasonable meaning, and the mutual intent of the parties
remains a question of fact to be determined at trial. See Tanner Elec. Coop. v.
Puget Sound Power & Light Co., 911 P.2d 1301, 1310 (Wash. 1996). We reverse
the grant of summary judgment in favor of the City on this claim, and remand for
further proceedings.
IV. Flood Control Berm
The Agreement obligates the Weinsteins to build a flood control berm along
the south bank of Coal Creek. Under Paragraph 6.3, the obligation to construct the
berm is “contingent upon receipt of all third party permits and approvals for the
Berm and Salmon Channel.” The Weinsteins received all necessary permits for the
berm and the salmon channel, but they have not yet built the berm. They are in
breach of this provision of the Agreement. Their argument that they are entitled to
defer construction of the berm until they receive permits for a salmon habitat
enhancement project fails because the clear language of Paragraph 6.3 conditions
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their obligation only upon receipt of permits for the berm and the salmon channel,
not upon receipt of permits for a salmon habitat enhancement project. We affirm
the district court’s grant of summary judgment on the City’s counterclaim against
the Weinsteins.
Each party shall bear its own costs on appeal.
AFFIRMED in part; REVERSED in part and REMANDED.