Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

KS TACOMA HOLDINGS, LLC,
                             Appellant.                          No.  41361-2-II

       v.

SHORELINES HEARINGS BOARD; DAVID                            PUBLISHED OPINION
MURPHY; MURPHY VAREY, P.S.; SITE-4 
FOSS WATERWAY, LLC; HOLLANDER
INVESTMENTS, INC.; and CITY OF 
TACOMA,
                             Respondents.

       Van Deren, J.  --  KS Tacoma Holdings appeals the Shorelines Hearings Board's summary 

judgment order in favor of Hollander Investments and the city of Tacoma (City).  The Board's 

summary judgment order found KS Tacoma did not have standing to appeal a permit revision 

granted to Hollander for development on the Thea Foss Waterway in Tacoma, Washington.  

Because KS Tacoma did not raise any genuine issue of material fact precluding summary 

judgment on the issue of its standing, we affirm.

                                            FACTS

       This appeal concerns proposed development on the Thea Foss Waterway in Tacoma, 

Washington.  The Thea Foss Waterway consists of approximately 3.5 miles of shoreline adjacent  

No.  41361-2-II

to downtown Tacoma.  The Thea Foss Waterway is an important development area for the City 

because of its proximity to the central business district, Union Station, the Tacoma Dome, and the 

port industrial area.  AR 398.  The record in this case indicates:

              The [Thea Foss] Waterway visually and physically connects surrounding 
       districts.  The Waterway's historic past and working waterfront, combined with 
       new cultural, recreational, residential, office and retail uses, will create a lively, 
       urban environment.  A linear waterfront park will link together a variety of 
       attractive, ground level public activities and uses accessible to all of Tacoma's 
       citizens and to the region.

Administrative Record (AR) at 396.  At one time, Thea Foss Waterway was a federally 

designated Superfund1 site but the City's comprehensive design and development plan has 

envisioned "turn[ing] Thea Foss Waterway into a showcase for Tacoma" through coordinated 

environmental clean-up efforts and mixed-use public and private development.  AR at 396.  

Toward that goal, the City has constructed a 120-foot wide public esplanade adjoining the 

waterway and has facilitated the development of the Museum of Glass and residential buildings 

such as Albers Mill Lofts, the Esplanade, and Thea's Landing.  

       On February 9, 2007, the City approved a shoreline substantial development permit (2007 

SSDP) authorizing the construction of a 120,000 square foot mixed-use building that included 

100 hotel rooms, 22 residential units, and retail/commercial uses on vacant property at "Foss Site-

4." AR at 573.  Foss Site-4 is located between the Esplanade building, which contains 176 

condominium units and a restaurant, and the Thea's Landing building, which contains 236 

residential units and retail space.  

       KS Tacoma owns the Hotel Murano, which is located approximately five city blocks from 

1 The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 
sections 9601-9675.
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No.  41361-2-II

Foss Site-4.  KS Tacoma did not appeal the 2007 SSDP.  On March 27, 2008, the City approved 

a permit revision that decreased the number of residential units to 16 and increased the number of 

hotel rooms to 160.  KS Tacoma did not appeal the 2008 permit revision.  

       Sometime after the City approved the first permit revision, Hollander purchased Foss Site-

4.  Hollander applied for a second permit revision (2009 revision), which the City approved on 

December 17, 2009.  The 2009 revision eliminated the 16 remaining residential units and 

increased the number of hotel rooms to 256.  The 2009 revision also changed the configuration of 

the building, replacing the single tower in the original design with two towers connected on the 

first floor by a single story structure.  Additionally, the 2009 revision increased the first floor 

space by five percent,2 and increased the total floor space from 180,000 square feet to 213,000 

square feet.  

       On January 8, 2010, KS Tacoma filed a petition for review of the City's approval of the 

2009 revision, asserting that it was inconsistent with the Shorelines Management Act (SMA)3 and 

the City's Shoreline Master Program.4 AR 1-8.  On March 11, 2010, Hollander and the City 

brought summary judgment motions to dismiss KS Tacoma's petition for review, asserting that 

KS Tacoma lacked standing to challenge the 2009 revision.  Hollander and the City also argued 

that several of KS Tacoma's contentions were not properly before the Board because they sought 

to challenge the 2007 SSDP, which KS Tacoma did not appeal.  

       On June 10, 2010, the Board issued an order dismissing KS Tacoma's petition for lack of 

2 KS Tacoma does not challenge the Hollander revision's proposed five percent increase in the 
groundfloor space.

3 Chapter 90.58 RCW.

4 Chapter 173-26 WAC.
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No.  41361-2-II

standing.  In reaching its decision, the Board stated that it considered only alleged injuries 

stemming from the 2009 revision because KS Tacoma did not appeal the original 2007 SSDP or 

the 2008 revision.  The Board found that KS Tacoma's asserted injuries to its recreation, view, 

and aesthetic interests were experienced by third parties and that the general standing doctrine did 

not allow KS Tacoma "to establish standing by asserting other's legal rights." AR at 561.  

       Alternatively, the Board found that, even if it were to consider the alleged injuries to third 

parties, KS Tacoma failed to establish that the 2009 revision would cause any cognizable harm to 

those interests.  The Board further ruled that "[t]he only injury specific to KS Tacoma is the 

impact the corporation claims to its reputation, tenor of the community, and diminished future 

investment," and that this claimed injury is "both speculative and economic and fail[s] to form the 

basis for KS Tacoma's standing." AR at 567.  

       KS Tacoma unsuccessfully moved for reconsideration of the Board order dismissing its 

petition for lack of standing.  In its order denying reconsideration, the Board clarified its previous 

decision:

       The Board is not ruling that a corporation could never assert a concrete injury 
       within the zone of interests protected by the SMA.  The Board, however, is ruling 
       that a corporation must establish a specific injury that is related to an identifiable 
       corporate interest or right protected by the environmental law at issue.

AR at 575.  The Board's order denying reconsideration also reiterated that KS Tacoma had failed 

to establish associational standing and, thus, it could not assert the interests of third parties to 

establish its standing to appeal the 2009 revision.5  

       On August 24, 2010, KS Tacoma appealed the Board's orders to Thurston County 

5 KS Tacoma assigns error to the Board's order denying reconsideration, but "[a]n order denying 
reconsideration . . . is not subject to judicial review." RCW 34.05.470(5).  Accordingly, we limit 
our review to the Board's original summary judgment order.
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No.  41361-2-II

Superior Court.  Hollander and the City applied for direct review to this court under RCW 

34.05.518.  On October 22, 2010, the Board entered an order granting a certificate of 

appealability, and we accepted direct review.  

                                          ANALYSIS

I.     Standard of Review

       The Administrative Procedure Act (APA), chapter 34.05 RCW, controls our review of 

agency actions, including that of the Board.  Former RCW 90.58.180(3) (2003); Batchelder v. 

City of Seattle, 77 Wn. App. 154, 158, 890 P.2d 25 (1995).  In reviewing an agency action, we 

apply the APA standards directly to the agency record.  Burnham v. Dep't of Soc. &Health 

Servs., 115 Wn. App. 435, 438, 63 P.3d 816 (2003).  To grant relief from the Board's summary 

judgment order, we must determine that "[t]he agency has erroneously interpreted or applied the 

law; [t]he order is not supported by evidence that is substantial when viewed in light of the whole 

record[; or t]he order is arbitrary or capricious."6 RCW 34.05.570(3)(d), (e), (i).

       We review de novo dismissals of claims on summary judgment under CR 56.  Reid v. 

Pierce County, 136 Wn.2d 195, 201, 961 P.2d 333 (1998).  Summary judgment is appropriate 

only if "the pleadings, 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 entitled to a judgment as a matter of law." CR 56(c).  

       Although the APA does not expressly authorize summary judgments, case law has 

established that agencies may employ summary proceedings.  Kettle Range Conservation Grp. v. 

6 Although KS Tacoma asserts that substantial evidence does not support the Board's summary 
judgment order dismissing their claim for lack of standing, it does not assert that the Board relied 
on any disputed facts in reaching its decision. 

                                               5 

No.  41361-2-II

Dep't of Natural Res., 120 Wn. App. 434, 456, 85 P.3d 894 (2003).  When reviewing an 

agency's summary judgment order, "we consider the APA standard of review together with the 

summary judgment standard of review, viewing disputed facts in the light most favorable to the 

nonmoving party while considering whether the moving party is entitled to judgment as a matter 

of law if based on undisputed facts."  Kettle, 120 Wn. App. at 456.  But the nonmoving party 

"may not rely on speculation, argumentative assertions that unresolved factual issues remain, or 

having its affidavits considered at face value."  Seven Gables Corp. v. MGM/UA Entm't Co., 106 

Wn.2d 1, 13, 721 P.2d 1 (1986).

II.    Standing under the SMA

       The SMA limits standing to persons "aggrieved by the granting, denying, or rescinding of 

a permit on shorelines of the state."  Former RCW 90.58.180(1).  RCW 34.05.010(14) defines 

"[p]erson" as, "any individual, partnership, corporation, association, governmental subdivision or 

unit thereof, or public or private organization or entity of any character, and includes another 

agency." KS Tacoma, a corporate entity, has the same rights and protections under the SMA as 

an individual person.  To qualify as an "aggrieved" person for purposes of establishing its standing 

under the SMA, KS Tacoma must put forth factual allegations demonstrating the following 

conditions:

              (1) The agency action has prejudiced or is likely to prejudice [KS Tacoma];
              (2) That [KS Tacoma]'s asserted interests are among those that the agency 
       was required to consider when it engaged in the agency action challenged; and
              (3) A judgment in favor of [KS Tacoma] would substantially eliminate or 
       redress the prejudice to [KS Tacoma] caused or likely to be caused by the agency 
       action.

RCW 34.05.530.

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No.  41361-2-II

       These statutory standing conditions are largely drawn from federal case law, and the APA 

expressly states the Legislature's intent that "courts should interpret provisions of [chapter 35.05 

RCW] consistently with decisions of other courts interpreting similar provisions of other states, 

the federal government, and model acts." RCW 34.05.001.  The first and third prongs of the 

APA standing test are collectively referred to as the "'injury-in-fact'" test, and the second prong is 

referred to as the "'zone of interests'" test.  Allan v. Univ. of Wash, 140 Wn.2d 323, 327, 997 

P.2d 360 (2000) (internal quotation marks omitted) (quoting Allan v. Univ. of Wash, 92 Wn. 

App. 31, 36, 959 P.2d 1184 (1998), aff'd, 140 Wn.2d 323).  KS Tacoma bears the burden of 

establishing its standing to contest the 2009 revision.  Lujan v. Defenders of Wildlife, 504 U.S. 

555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).

       A.  Zone of Interest

       To meet the zone of interest test for standing, KS Tacoma must show that the legislature 

intended the SMA to protect its asserted interests in the land use, aesthetics, and view impacts of 

the 2009 revision.  Save a Valuable Env't (SAVE) v. City of Bothell, 89 Wn.2d 862, 866, 576 

P.2d 401 (1978).  The City appears to concede, and Hollander does not contest, that KS 

Tacoma's asserted interests are within the SMA's zone of interests.  We agree.

       RCW 90.58.020 states in relevant part:

       The department . . . and local government . . . shall give preference to uses in the 
       following order of preference which:
              (1) Recognize and protect the statewide interest over local interest;
              (2) Preserve the natural character of the shoreline;
              (3) Result in long term over short term benefit;
              (4) Protect the resources and ecology of the shoreline;
              (5) Increase public access to publically owned areas of the shorelines;
              (6) Increase recreational opportunities for the public in the shoreline;
              (7) Provide for any other element as defined in RCW 90.58.100 deemed 
       appropriate or necessary.

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No.  41361-2-II

              In the implementation of this policy the public's opportunity to enjoy the 
       physical and aesthetic qualities of natural shorelines of the state shall be preserved 
       to the greatest extent feasible consistent with the overall best interest of the state 
       and the people generally.

       RCW 90.58.020's hierarchy of land use preferences and stated policy of protecting the 

public's enjoyment of our State's shorelines clearly show that the legislature intended to protect

KS Tacoma's asserted interests in land use, aesthetic, and view impacts of shoreline development.  

See also Hunt v. Anderson, 30 Wn. App. 437, 440-41, 635 P.2d 156 (1981) (SMA and general 

shorelines use activities regulations demonstrated intent to protect use of public and private 

property preventing obstruction of scenic views).  "[A]lthough the zone of interest test serves as 

an additional filter limiting the group which can obtain judicial review of an agency decision, the 

'test is not meant to be especially demanding.'"  Seattle Bldg. &Constr. Trades Council v. 

Apprenticeship & Training Council, 129 Wn.2d 787, 797, 920 P.2d 581 (1996) (quoting Clarke 

v. Sec. Ind. Ass'n, 479 U.S. 388, 399, 107 S. Ct. 750, 93 L. Ed. 2d 757 (1987)). Accordingly, we 

hold that KS Tacoma has met the zone of interest test.    

       B.  Injury-In-Fact

       KS Tacoma contends that the land use, aesthetic, and view impacts of the Hollander 

revision show that it will suffer an injury-in-fact sufficient to demonstrate its standing to challenge 

the 2009 revision.  Hollander and the City argue that KS Tacoma, as a for-profit corporation, has 

failed to show it will personally suffer any injury from the 2009 revision apart from a speculative 

economic injury as a competitor to the proposed hotel development.7 To the extent this argument 

would diminish KS Tacoma's rights as a "person" under RCW 34.05.010(14), we reject this 

7 As the alternative to standing in its own right, KS Tacoma asserts it has associational standing to 
represent its owners, employees, and guests.  We address KS Tacoma's associational standing 
argument below.
                                               8 

No.  41361-2-II

argument based on an asserted distinction between a corporation and an individual.

       To meet the injury-in-fact test, KS Tacoma must put forth material issues of fact showing 

that (1) the 2009 revision prejudices or is likely to prejudice it and (2) a decision revoking the 

2009 revision would redress such prejudice.  RCW 34.05.530; Allan, 140 Wn.2d at 327.  The 

prejudice prong of the injury-in-fact test requires KS Tacoma to allege that it will be "'specifically 

and perceptibly harmed'" by the 2009 revision.  Trepanier v. City of Everett, 64 Wn. App. 380, 

382, 824 P.2d 524 (1992), (quoting SAVE, 89 Wn.2d at 866).  When a person or corporation 

alleges a threatened injury, as opposed to an existing injury, the person or corporation must show 

an immediate, concrete, and specific injury to themselves.  Trepanier, 64 Wn. App. at 383 (citing

Roshan v. Smith, 615 F.Supp. 901, 905 (D.D.C. 1985)).  "If the injury is merely conjectural or 

hypothetical, there can be no standing."  Trepanier, 64 Wn. App. at 383, (citing United States v. 

Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 688-89, 93 S. Ct. 2405, 37 

L. Ed. 2d 254 (1973)).

       The redress prong of the injury-in-fact test requires KS Tacoma to put forth material 

issues of fact showing that it is "likely, as opposed to merely speculative, that the injury will be 

redressed by a favorable decision."  Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), 

Inc., 528 U.S. 167, 180 -- 81, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000) (citing Lujan, 504 U.S. at 

560 -- 61).

       As an initial matter, KS Tacoma contends that we should examine the 2009 revision's 

impact on the entire Foss site-4 project to determine whether it has sufficiently alleged an injury-in-

fact to defeat summary judgment for lack of standing.  The City and Hollander assert that, 

because KS Tacoma did not appeal the original 2007 SSDP or the 2008 revision, we must limit 

                                               9 

No.  41361-2-II

our review to KS Tacoma's alleged injuries stemming from the 2009 revision's changes to the 

2008 revision.   We agree with the City and Hollander.

       Former RCW 90.58.180(1) provides that "[a]ny person aggrieved by the granting . . . of a 

permit on shorelines of the state . . . may . . . seek review from the [Board] by filing a petition for 

review within twenty-one days of the date of filing [of the Board's decision]." Because KS 

Tacoma did not appeal the City's grant of the original 2007 SSDP or the 2008 revision within the 

statutorily required time period, it cannot now challenge the validity of the 2007 SSDP or the 

2008 revision.  Moreover, WAC 173-27-100(8) provides that appeals from permit revisions "shall 

be filed within twenty-one days from the date of receipt of the local government's action by the 

department. . . . If an appeal is successful in proving that a revision is not within the scope and 

intent of the original permit, the decision shall have no bearing on the original permit." Thus, 

even if KS Tacoma prevails in proving the invalidity of the 2009 revision, such invalidity would 

have no bearing on the 2007 SSDP.  

       KS Tacoma argues that, notwithstanding WAC 173-27-100(8)'s limitations on the effect 

of a successful appeal from a permit revision, Hollander could not proceed under the original 

2007 SSDP if the 2009 revision were voided because of the two-year time limitation for 

commencing construction activities (with a potential one-year extension) under RCW 90.58.143.  

KS Tacoma contends that a revocation of the 2009 revision would result in Hollander having to 

apply for a new SSDP and, thus, would allow KS Tacoma to broadly challenge the impacts of the 

entire Hollander proposal as not being consistent with the SMA or the City's Shoreline Master 

Program.  

       But KS Tacoma ignores subsection (4) of the statute which states in part:

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No.  41361-2-II

       The permit time periods . . . do not include the time during which a use or activity 
       was not actually pursued due to the pendency of administrative appeals or legal 
       actions or due to the need to obtain any other government permits and approvals 
       for the development that authorize the development to proceed, including all 
       reasonably related administrative or legal actions on any such permits or approvals.

RCW 90.58.143(4).

       KS Tacoma's argument that defeating the 2009 revision would vacate the original 2007 

permit and require a new permit application process allowing it to challenge the scope of the 

entire Hollander proposal fails.  Accordingly, in determining whether KS Tacoma has sufficiently 

alleged an injury-in-fact to establish its standing to challenge the 2009 revision, we examine only 

KS Tacoma's claimed injuries stemming from the 2009 revision's changes to the 2008 revision.  

We now address each of KS Tacoma's claimed injuries.

              i. Land Use Injury

       First, KS Tacoma alleges a threatened injury stemming from the 2009 revision's proposed 

changes in land use that eliminate residential units and increase the number of hotel rooms.  KS 

Tacoma asserts that the 2009 revision's proposed change in land use injures it because "the 

decision to create a limited service, branded hotel will lessen appeal for future development and 

investment, will impact the land uses in the immediate vicinity, and will frustrate the City's efforts 

to develop this area with a mix of high-end residential and commercial uses." Br. of Appellant at 

41.  Because KS Tacoma's alleged land use injury is speculative and lacks factual support, it fails 

the prejudice prong of the injury-in-fact test.  

       Trepanier is instructive when addressing threatened injuries arising from land use actions.  

In Trepanier, the owner of a civil engineering and land use consulting firm appealed the City of 

Everett's determination of nonsignificance (DNS) under the State Environmental Policy Act 

                                               11 

No.  41361-2-II

(SEPA).8 64 Wn. App. at 381.  Trepanier alleged that Everett's new zoning code, which reduced 

development potential within Everett, would cause adverse environmental impacts in 

unincorporated Snohomish County.  Trepanier, 64 Wn. App. at 382.  Division One of this court 

held that Trepanier lacked standing because he failed to allege an injury-in-fact stemming from 

Everett's issuance of a DNS:

       [T]he only threatened injury alleged is that several sections of the new zoning code 
       will reduce allowable densities and development potential within Everett, thereby 
       transferring growth that cannot occur in Everett to unincorporated Snohomish 
       County.  His argument is based on the unsupported assumption that reducing 
       densities in some areas will necessarily result in reduced development potential 
       within Everett to such an extent that development will be forced into 
       unincorporated Snohomish County.  Trepanier's argument is fatally flawed 
       because his bare assertion that the new code will likely create serious adverse 
       impacts on unincorporated Snohomish County has absolutely no factual support in 
       the record.

Trepanier, 64 Wn. App. at 383-84.  KS Tacoma has similarly failed to support its bare assertion 

that the Hollander revision will have a serious adverse impact on future development in the area 

with any facts in the record.  

       To support its assertion that the 2009 revision will negatively impact future development, 

KS Tacoma cites only the affidavits of Howard Jacobs, part owner of KS Tacoma, and Mark Van 

Cooney, general manager of the Hotel Murano.  Br. of Appellant at 41; AR 159, 176.  Both 

Jacobs's and Cooney's affidavits conclude that the decision to create a limited service hotel will 

lessen appeal for future development and investment but they do not provide factual support for 

their conclusions.  AR 159, 176.  KS Tacoma cannot rely on Jacob's and Cooney's bare 

assertions, nor can they rely on the affidavits being considered at face value.  Seven Gables, 106 

Wn.2d at 13.  KS Tacoma has not presented factual support for its assertion that the 2009 

8 Chapter 43.21C RCW.
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No.  41361-2-II

revision's elimination of residential units and the increase in the number of hotel rooms will 

negatively affect future development in the area.  Accordingly, KS Tacoma's alleged injury from a 

change in land use is conjectural and cannot support its standing to challenge the revision.

              ii. Aesthetic Enjoyment Injury

       Next, KS Tacoma claims an injury-in-fact stemming from the 2009 revision's interference 

with the aesthetic enjoyment of the Thea Foss Waterway.  Specifically, KS Tacoma claims that 

the 2009 revision does "not have any special aesthetic qualities" and will not be a "world class 

architectural wonder[ ]" because the proposal calls for "walls of a fake brick façade and other 

formulaic architecture with no respect for the aesthetic of the area." Br. of Appellant at 38.  

Because KS Tacoma fails to demonstrate that a decision revoking the 2009 revision will redress

its alleged aesthetic injury, it fails the redress requirement of the injury-in-fact test.    

       Here, KS Tacoma appealed only the 2009 revision and did not timely appeal the original 

2007 SSDP or the 2008 permit revision.  WAC 173-27-100 governs appeals from state shoreline 

development permit revisions and provides in relevant part:

       A permit revision is required whenever the applicant proposes substantive changes 
       to the design, terms or conditions of a project from that which is approved in the 
       permit.  Changes are substantive if they materially alter the project in a manner that 
       relates to its conformance to the terms and conditions of the permit, the master 
       program and/or the policies and provisions of chapter 90.58 RCW.  Changes 
       which are not substantive in effect do not require approval of a revision.
              When an applicant seeks to revise a permit, local government shall request 
       from the applicant detailed plans and text describing the proposed changes.
              (1) If local government determines that the proposed changes are within 
       the scope and intent of the original permit, and are consistent with the applicable 
       master program and the act, local government may approve a revision.
              (2) 'Within the scope and intent of the original permit' means all of the 
       following:
              (a) No additional over water construction is involved except that pier, 
       dock, or float construction may be increased by five hundred square feet or ten 
       percent from the provisions of the original permit, whichever is less;

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No.  41361-2-II

              (b) Ground area coverage and height may be increased a maximum of ten 
       percent from the provisions of the original permit; 
              (c) The revised permit does not authorize development to exceed height, 
       lot coverage, setback, or any other requirements of the applicable master program 
       except as authorized under a variance granted as the original permit or a part 
       thereof; 
              (d) Additional or revised landscaping is consistent with any conditions 
       attached to the original permit and with the applicable master program; 
              (e) The use authorized pursuant to the original permit is not changed; and 
              (f) No adverse environmental impact will be caused by the project revision.
              . . . .
              (8) Appeals shall be in accordance with RCW 90.58.180 and shall be filed 
       within twenty-one days from the date of receipt of the local government's action 
       by the department . . . . Appeals shall be based only upon contentions of 
       noncompliance with the provisions of subsection (2) of this section. . . . If an 
       appeal is successful in proving that a revision is not within the scope and intent of 
       the original permit, the decision shall have no bearing on the original permit. 

Under WAC 173-27-100, permit revisions are not conditioned on a developer's adherence to the 

original permit's aesthetic design.  And WAC 173-27-100(8) provides that a successful appeal 

from a permit revision has no bearing on the original permit.  

       Furthermore, federal constitutional standing requires that an injury must be fairly traceable 

to the challenged action, and relief from the injury must be likely to follow from a favorable 

decision.  Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38-41, 96 S. Ct. 1917, 48 L. Ed. 2d 

450 (1976).  APA standing analysis similarly requires a party to demonstrate that "[a] judgment in 

favor of that person would substantially eliminate or redress the prejudice to that person caused or 

likely to be caused by the agency action." RCW 34.05.530.

       Although KS Tacoma is highly critical of the proposed building design, it has not alleged 

any direct and specific harm flowing from an "unattractive" building design.  Br. of Appellant at 

38.  Instead, KS Tacoma merely concludes that it "has a concrete and personal interest in the 

aesthetics of the Thea Foss Waterway that will be harmed by the City's approval of the Hollander 

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No.  41361-2-II

development proposal," without providing factual support for this claim in the record.  Br. of 

Appellant at 36-37.  

       Moreover, even if the Board voided the City's issuance of a permit revision to Hollander 

to construct two "limited service, branded hotel[s]" that provide less-than "high-end residential 

and commercial uses," as argued by KS Tacoma, it is not likely that the decision would provide 

KS Tacoma relief from the alleged aesthetic impacts of the 2009 revision because Hollander 

would remain free to finish its project with its choice of aesthetic design, not one guaranteed to 

please KS Tacoma.  Br. of Appellant at 41.  Thus, KS Tacoma has not asserted material issues of 

fact relating to the aesthetics or the redressability of the alleged injury that preclude summary 

judgment in favor of the City and Hollander on the 2009 revision.

              iii. View Impact Injury

       Finally, KS Tacoma asserts an injury from the view impact of the Hollander revision.  

Similar to the alleged aesthetics injury, a favorable Board decision is unlikely to redress an alleged 

injury stemming from KS Tacoma's alleged view impact of the 2009 revision. Thus, we hold that 

KS Tacoma fails to allege an injury-in-fact arising from the 2009 revision with regard to the view 

impact.  

       WAC 173-27-100(2)(b) allows a developer to increase the maximum height of a building 

up to 10 percent from the building height approved under the original SSDP.  Here the 2007

SSDP proposed a maximum building height of 97 feet 9 inches.  CP 248.  And the 2009 revision 

increased the building height by only one inch, well within the 10 percent height increase WAC 

173-27-100(2)(b) allows.  In fact, Hollander and the City presented evidence that the view impact 

from the Hotel Murano would decrease slightly under the 2009 revision because of the two tower 

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No.  41361-2-II

design.  Because the 2009 revision's increase in building height is within WAC 173-27-

100(2)(b)'s allowable limits and, thus, does not provide a basis for revocation of the 2009 revision 

decision, a decision revoking the 2009 permit revision on any ground would not provide KS 

Tacoma with relief from the view impact caused by the one-inch height change in the 2009 

revision.  Accordingly, KS Tacoma has not met the redress prong of the injury-in-fact test relating 

to the view impact.  

       The United States Supreme Court has recognized that demonstrating the redress element 

of the injury-in-fact test is more difficult when, as here, the government action or inaction being 

challenged is directed at a third party rather than the party asserting injury:

       When the suit is one challenging the legality of government action or inaction, the 
       nature and extent of facts that must be averred (at the summary judgment stage) or 
       proved (at the trial stage) in order to establish standing depends considerably upon 
       whether the plaintiff is himself an object of the action (or forgone action) at issue.  
       If he is, there is ordinarily little question that the action or inaction has caused him 
       injury, and that a judgment preventing or requiring the action will redress it.  
       When, however, as in this case, a plaintiff's asserted injury arises from the 
       government's allegedly unlawful regulation (or lack of regulation) of someone 
       else, much more is needed.  In that circumstance, causation and redressability 
       ordinarily hinge on the response of the regulated (or regulable) third party to the 
       government action or inaction - and perhaps on the response of others as well.  
       The existence of one or more of the essential elements of standing "depends on the 
       unfettered choices made by independent actors not before the courts and whose 
       exercise of broad and legitimate discretion the courts cannot presume either to 
       control or to predict,"  ASARCO Inc. v. Kadish, 490 U. S. 605, 615[, 109 S. Ct. 
       2037, 104 L. Ed. 2d 696] (1989) (opinion of KENNEDY, J.); see also Simon, 426 
       U.S.] at 41-42[]; and it becomes the burden of the plaintiff to adduce facts 
       showing that those choices have been or will be made in such manner as to 
       produce causation and permit redressability of injury.  E. g., Warth[ v. Seldin, 422 
       U.S. 490,] 505[, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975)].  Thus, when the 
       plaintiff  is not himself the object of the government action or inaction he 
       challenges, standing is not precluded, but it is ordinarily "substantially more 
       difficult" to establish.  Allen [v. Wright, 468 U.S. 737,] 758[, 104 S. Ct. 3315, 82 
       L. Ed. 2d 556 (1984)]; Simon, [426 U.S.] at 44-45[], Warth, [422 U.S.] at 505.     

                                               16 

No.  41361-2-II

Lujan, 504 U.S. at 561-62.

       KS Tacoma has not met the admittedly difficult task of demonstrating or putting forth 

material issues of fact showing that Hollander or the City would make future choices that redress 

KS Tacoma's alleged aesthetics and view impact injuries if the 2009 revision were revoked.  Such 

choices could involve Hollander modifying a permit revision application in a way that would not 

alleviate KS Tacoma's alleged injuries, or the City could issue a new permit revision with 

specifications similar to those that KS Tacoma claims create an injury-in-fact to it.  Here, KS 

Tacoma's asserted land use injuries are conjectural and lack factual support, and the aesthetic and 

view impact injuries would not be redressed by a decision in its favor.  Accordingly, KS Tacoma 

cannot satisfy the injury-in-fact test and we agree with the Board that KS Tacoma does not have 

standing to appeal the 2009 revision, nor, on this record, could it survive the summary judgment 

motion since it relied on speculation and argumentative assertions that unresolved factual issues 

remained and the trial court need not have considered its affidavits at face value.  Seven Gables 

Corp., 106 Wn.2d at 13.  Thus, we affirm the Board's summary judgment order in favor of the 

City and Hollander on the 2009 revisions. 

III.   Associational Standing

       KS Tacoma alternatively asserts that if it does not have standing to appeal the 2009 

revision in its own right, it could assert associational standing on behalf of its members, which KS 

Tacoma claims includes its owners, employees, and Hotel Murano guests.  We disagree.

       Generally, a party cannot rely on injuries to third parties to establish standing.  See, e.g.,

Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804, 105 S. Ct. 2965, 86 L. Ed. 2d 628 (1985); 

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 263, 97 S. Ct. 555, 50 L. 

                                               17 

No.  41361-2-II

Ed. 2d 450 (1977).  The United States Supreme Court has, however, 

recognized an exception to this general standing doctrine where an 

association claims to represent its member's interests.  Hunt v. Wash. State Apple Adver. 

Comm'n, 432 U.S. 333, 343, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977).

       An association has standing to bring suit on behalf of its members if it satisfies three 

requirements:  "([1]) its members would otherwise have standing to sue in their own right; ([2]) 

the interests it seeks to protect are germane to the organization's purpose; and ([3]) neither the 

claim asserted nor the relief requested requires the participation of individual members in the 

lawsuit."  Hunt, 432 U.S. at 343.  An association generally has standing to sue as long as one of 

its members has standing.  E. Gig Harbor Improvement Ass'n v. Pierce County, 106 Wn.2d 707, 

710, 724 P.2d 1009 (1986).

       Hollander and the City contend that KS Tacoma cannot assert associational standing 

because, as a for-profit corporation, it is not organized to express the collective interests of its 

owners, employees, and hotel guests.  Hollander and the City thus claim that KS Tacoma does not 

have any members for which it can assert associational standing.  But we need not answer the 

question of whether a for-profit corporation such as KS Tacoma can assert associational standing 

for owners, employees, and patrons because it cannot demonstrate that any of its claimed 

members have standing in his or her own right.  As we addressed above, KS Tacoma has failed to 

raise material issues of fact relating to alleged injuries-in-fact stemming from the Hollander 

revision.  

       Although we do not squarely reach whether a for-profit corporation such as KS Tacoma 

can assert associational standing on behalf of its owners, employees, and patrons, because it has 

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No.  41361-2-II

failed to raise material issues of fact as to its claimed members' injuries-in-fact, we note that it 

would not likely have associational standing under existing case law.  

       KS Tacoma cites one federal district court case, Overseas Shipholding Group, Inc. v. 

Skinner, 767 F. Supp. 287 (D.D.C. 1991), for the proposition it can assert standing on behalf of 

its employees.  In Overseas Shipholding, the D.C. District Court held that a corporate shipholding 

company had standing to assert a National Environmental Policy Act9 claim on behalf of its 

employees because of the potential risk to employees' health from air and water pollution created 

by the challenged government action.  767 F. Supp. 287.  The Overseas Shipholding court did not 

hold that a for-profit corporation could assert standing on behalf of its customers, and KS 

Tacoma has not cited any authority for the proposition that it may assert standing on behalf of its 

customers.  KS Tacoma has similarly not cited any authority for the proposition that a for-profit 

corporation may assert standing to protect its employees' interests in land use, aesthetics, and 

view impacts.  Further, the Overseas Shipholding associational standing analysis has been 

narrowed or rejected by later federal district court cases.  

       In Taubman Realty Grp. Ltd. P'ship v. Mineta, 198 F. Supp. 2d 744 (E.D.Va. 2002), 

aff'd, 320 F.3d 475 (4th Cir.(Va.) 2003), a shopping center developer asserted that it had 

associational standing based on alleged safety and health risks to its employees and patrons.  The 

Taubman court held that the developer could not establish associational standing "[b]ecause the 

interests at stake [were] not at all 'germane' to [the developer's] organizational purposes." 198 

F. Supp. 2d at 758.  The Taubman court explained:

              TRG owns and operates a shopping center.  TRG is not a citizens group or 
       an association with a demonstrable interest in, or commitment to, environmental or 
       traffic-related causes or concerns.  In fact, through the operation of Regency 

9 42 U.S.C.A. § 4321.
                                               19 

No.  41361-2-II

       [Mall], TRG . . . precipitates some of the very environmental and traffic-related 
       impacts on which it seeks to fasten its standing in this action.  TRG has made no 
       showing that environmental, traffic, or general safety interests are "germane" to its 
       organizational purposes in any judicially cognizable manner.  It is the burden of 
       TRG to make that showing and its failure to satisfy that burden is fatal to its 
       position on standing.

198 F. Supp. 2d at 758 (footnotes omitted).  In holding that the developer could not establish 

associational standing, the Taubman court distinguished Overseas Shipholding:

              Overseas Shipholding is inapposite here.  As the Federal Defendants 
       properly have recognized, the business owner in Overseas Shipholding was 
       permitted to assert its employees' interests in safe and healthy waterways because 
       those waterways were the employees' direct working environment.  In contrast, 
       the plaintiffs in this case seek to assert the interests of employees . . . in commuting 
       to and from work on public roads, upon which thousands of non-employee citizens 
       travel every day.  Those circumstances are far removed from the situation before 
       the court in Overseas Shipholding; and . . . no court has stretched the concept of 
       associational standing to the point to which it must be taken to confer standing on 
       TRG or Taubman.  To permit the plaintiffs to sue based upon the type of injuries 
       to employees that are alleged . . . would necessitate a substantial leap in logic, and 
       an unprecedented expansion in the doctrine of standing, that the Court i[s] not 
       prepared to make.

Taubman, 198 F. Supp. 2d at 759 (footnote omitted).

       Another federal district court has rejected the Overseas Shipholding associational standing 

analysis altogether.  One Thousand  Friends of Iowa v. Mineta, 250 F.Supp.2d 1064 (S.D.Iowa 

2002).  In holding that a mall limited partnership could not establish associational standing based 

on an alleged injury to its employees' health, safety, and comfort, the Mineta court noted:

              With due respect to the district court's opinion in Overseas Shipholding 
       Group, the Supreme Court's decision in Hunt makes clear that "associational 
       standing" is generally limited to voluntary membership organizations and/or typical 
       trade associations organized to represent a particular group of individuals.  Hunt, 
       432 U.S. at 342-43 . . . .  Merle Hay Mall does not fit within either of these 
       classifications.  Accordingly, the Court declines to follow Overseas Shipholding, 
       and holds Merle Hay Mall does not have standing to bring the present action on 
       the basis of alleged injuries to its employees.

                                               20 

No.  41361-2-II

250 F. Supp. 2d at 1069.

       As Tauban and Mineta demonstrate, even if KS Tacoma had raised a genuine issue of 

material fact sufficient to demonstrate an injury-in-fact to its claimed members, it could not likely 

assert associational standing on their behalf under current federal case law.  

       Accordingly, we affirm the Board's summary judgment order dismissing KS Tacoma's 

claim for lack of standing.

                                                 Van Deren, J.
We concur:

Penoyar, C.J.

Worswick, J.

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