Alger v. City of Mukilteo
| Decision Date | 08 January 1987 |
| Docket Number | 52449-1,Nos. 52157-3,s. 52157-3 |
| Citation | 107 Wn.2d 541,730 P.2d 1333 |
| Parties | Robert K. ALGER and Lynn Ann Alger, Appellants, v. CITY OF MUKILTEO, Respondent. |
| Court | Washington Supreme Court |
Derrill Bastain, Philip Bastain, Lynnwood, for appellants.
Hackett, Beecher, Hart, Branom, Vavrichek & Drury, John Hackett, K.C. Webster, Seattle, for respondent.
At the end of 1978, the Algers purchased unimproved property in Mukilteo zoned as single family residential. The Algers planned on building a large condominium project on the land, and wanted the City of Mukilteo to rezone the land accordingly. On 8 September 1980, the Mukilteo Planning Commission, in a taped hearing, approved of the rezone, after a heated debate with a group opposed to there zone, the Mukilteo Improvement Association. This rezone approval had to be ratified by the Mukilteo City Council.
A few days after this hearing, two members of the Mukilteo Improvement Association checked out the only copy of the tape of the proceedings. Shortly thereafter, they reported that there was a 90-minute gap in the tape, allegedly caused by faulty operation of the tape recorder during the proceeding. Nevertheless, despite the existence of this gap, the city council approved the planning commission's recommendations for rezone, by enacting ordinance 347.
The Mukilteo Improvement Association challenged ordinance 347 by writ of certiorari to the superior court on the basis of the gap in the record. The superior court ruled ordinance 347 invalid. No formal entry of its order was entered until 1985, although during all subsequent proceedings, both sides assumed that it was invalid. The Algers The planning commission again approved the subject rezone for a somewhat smaller condominium project in May 1981. The city council also approved the commission's rezone by passing ordinance 372. The mayor, who had publicly supported the condominium project, presided over the council meeting. The Mukilteo Improvement Association challenged this ordinance for violation of the appearance of fairness doctrine based on the Mayor's participation. The superior court agreed, and declared the second rezone ordinance invalid. While the propriety of this ruling is not before us, it is interesting to note that the council had also publicly supported a similar condominium project when it passed the first rezone ordinance. However, the Algers accepted the superior court ruling, and did not appeal. If they had appealed and prevailed, they would have had the necessary rezone to build the condominiums.
did not appeal the superior court ruling. The Algers, in effect, had to start over and reapply for a rezone of their property
Before another rezone application could be filed, elections were held which placed key Mukilteo Improvement Association members on the Mukilteo City Council. Faced with this opposition the Algers decided against proceeding with their condominium project and instead, attempted to get the necessary permits to build six residential houses on the subject land. The Algers, however, never succeeded in this project. The City issued certain permits allowing for tree cutting, road construction, and sewer hookups only to revoke the permits on the Mayor's direction shortly thereafter. The Director of Public Works for the City saw no reason to revoke the permits, and reinstated them a few days later. Approximately 2 months later, the City reclassified one of the streets leading to the Algers' property as an alley, which prevented more than one home from being built on the property. The City subsequently revoked the remaining outstanding permits as being erroneously issued.
The Algers filed a complaint against the City listing three separate causes of action. The first cause related to the negligent operation of the tape recorder which resulted in the first rezone application's being dismissed. The second action dealt with the City's alleged negligence in conducting a hearing which was invalidated for violation of the appearance of fairness doctrine. The final cause of action asserted that the City negligently issued permits which the City later revoked.
The City moved for summary judgment on all three causes of action, but only obtained a dismissal of the second cause relating to the appearance of fairness. The Algers successfully moved for partial summary judgment on the first issue, claiming that the City had a duty to keep a verbatim transcript of the planning commission proceedings.
The jury awarded the plaintiffs over $1.5 million on its first cause of action and almost $1.4 million for the third cause of action. The City moved for a judgment n.o.v. and a new trial. The judge denied the motion for judgment n.o.v., but granted a new trial unless the Algers accepted a reduction of the verdict to $500,000. The Algers refused and the court entered an order for a new trial.
The Algers have appealed here. The Algers also appeal the trial court's dismissal of their original second cause of action dealing with the city council's second rezone hearing which violated the appearance of fairness doctrine. The City cross-appeals arguing that the trial court erred in denying the City's motion for summary judgment on the first and third causes of action.
In order to establish a cause of action in negligence for failure to maintain a verbatim record of the planning commission's hearing, the Algers must establish: (1) the existence of a duty owed to the Algers by the City, (2) a breach of that duty, (3) a resulting injury, and (4) a proximate cause between the claimed breach and resulting injury. Pedroza v. Bryant, 101 Wash.2d 226, 228, 677 P.2d 166 (1984); Hansen v. Washington Natural Gas Co., 95 Wash.2d 773, 632 P.2d 504 (1981). The City argues, despite a partial summary judgment to the contrary, that it did not owe the Algers a duty to keep an accurate record of the planning commission's hearing.
A determination of proximate cause is generally a question of fact, although with undisputed facts the question may become a determination of law. France v. Peck, 71 Wash.2d 592, 430 P.2d 513 (1967). Here, the results of whatever negligence the City committed are not disputed. The Algers had to apply for another rezone of their property, which again was granted by the planning commission and the Mukilteo City Council.
The Algers claim that the negligent handling of the tape "opened the door" for further acts of the City which exacerbated their injuries. Brief of Appellant, at 69. We disagree. In order to meet the requirement of proximate cause in a negligence case, the negligent conduct must cause in a direct sequence, unbroken by any independent cause, the injury complained of. Hartley v. State, 103 Wash.2d 768, 777, 698 P.2d 77 (1985), King v. Seattle, 84 Wash.2d 239, 249 Furthermore, we note that the City, after failing to keep an accurate report of the planning commission's hearing, did grant the Algers' proposed rezone. Ordinance 347, which was subsequently declared invalid, allowed the Algers to build their proposed condominiums. At this point, the City was not deliberately thwarting the Algers' proposed developments. The City was sympathetic to the Algers' efforts to rezone the property, and no liability should attach for its efforts, especially since the Algers at no point appealed the superior court order invalidating the rezone. We therefore hold that plaintiffs' first cause of action for the City's negligent operation of the tape recorder did not proximately cause the Algers' damages and should be dismissed.
525 P.2d 228 (1974); see also WPI 15.01. In this case this requirement is not met. The original planning commission's decision did not give the Algers any vested rights, and the only damage the Algers suffered was that a new planning commission hearing was required. Their land had not increased in value because of the void rezone ordinance, and it was only the subsequent alleged tortious conduct on the part of the City that could account for the injuries the Algers claim to have suffered. The City's subsequent conduct is an independent cause, which is included in the Algers' third cause of action
Another compelling reason for the dismissal of the first cause of action is that the Algers failed to appeal the superior court order invalidating ordinance 347. Had the Algers appealed, they might have had the appellate court reinstate the condominium rezone. Because they failed to bring an appeal, they waived all rights to challenge the procedures surrounding the ordinance, as any such challenge would be premature.
The Algers claim that the City is liable for its alleged negligence in passing an ordinance which later was invalidated for violation of the appearance of fairness doctrine.
We agree with the trial court that the Algers failed to state a proper cause of action and that the trial court properlydismissed this claim.
The appearance of fairness doctrine requires that quasi-judicial land use decisions, such as rezones, must be fair, and...
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