Baxter-Wyckoff Co. v. City of Seattle

• Decision Date: 09 December 1965
• Docket Number: Nos. 37157,BAXTER-WYCKOFF,s. 37157
• Citation: 408 P.2d 1012,67 Wn.2d 555
• Parties: COMPANY, a corporation (formerly named West Coast Wood Preserving Co.), Respondent, v. CITY OF SEATTLE, a municipal corporation, and Roy W. Morse, Paul J. Raver, Fred B. McCoy and J. Ray Heath, the Members of and Constituting the Board of Public Works of said City of Seattle, Appellants. NETTLETON LUMBER CO., a corporation, Respondent, v. CITY OF SEATTLE, a municipal corporation, and Roy W. Morse, Paul J. Raver, Fred B. McCoy and J. Ray Heath, the Members of and Constituting the Board of Public Works of said City of Seattle, Appellants. to 37170.
• Court: Washington Supreme Court

Page 555

67 Wn.2d 555

408 P.2d 1012

BAXTER-WYCKOFF COMPANY, a corporation (formerly named West

Coast Wood Preserving Co.), Respondent, v. CITY OF SEATTLE, a municipal corporation, and Roy W. Morse, Paul J. Raver, Fred B. McCoy and J. Ray Heath, the Members

of and Constituting the Board of Public Works of said City

of Seattle, Appellants.

NETTLETON LUMBER CO., a corporation, Respondent, v. CITY OF SEATTLE, a municipal corporation, and Roy W. Morse, Paul J. Raver, Fred B. McCoy and J. Ray Heath, the Members

of and Constituting the Board of Public Works of said City

of Seattle, Appellants.

Nos. 37157 to 37170.

Supreme Court of Washington, En Banc.

Dec. 9, 1965.

A. L. Newbould, Corp. Counsel, James P. Harris, Jorgen Bader, Asst. Corp. Counsel, Seattle, for appellant.

Evans, McLaren, Lane, Powell & Moss, William T. Jacobson, Seattle, for Baxter-Wycoff.

Wright, Innis, Simon & Todd, Donald A. Schmechel, Seattle, for Nettleton.

DONWORTH, Judge.

This is a consolidated action in which the plaintiffs (respondents), Baxter-Wyckoff Company and the Nettleton Lumber Company, seek to enjoin the defendant (appellant), City of Seattle, from collecting certain fees charged in connection with street use permits issued to the plaintiffs and covering their private use of Southwest Florida Street.

Plaintiff Baxter-Wyckoff Company is a lessee of the property abutting on both sides of Southwest Florida Street. Plaintiff Nettleton Lumber Company is an abutting owner of the property adjoining the Baxter-Wyckoff property on the east. Southwest Florida Street was dedicated to public use and platted in 1897 on tidelands owned by the state and located outside the city limits, but within 2 miles thereof. It ranges in width from 250 to 450 feet. The area was annexed to the city of West Seattle in 1905, and to the city of Seattle in 1907. Although the street was never opened, in view of its original location and that it was on state tidelands, we held in Wyckoff v. City of Seattle, 60 Wash.2d 100, 371 P.2d 935 (1962), that it did not become vacated by lapse of time under Laws of 1889--1890, ch. 19, § 32.

Virtually all of the street area adjacent to the Baxter-Wyckoff Company's premises is covered with structures and industrial installations comprising a part of the Baxter-Wyckoff wood processing operation. The area devoted to private use by Baxter-Wyckoff under its street use permit comprises approximately 73,000 square feet for which it is charged an annual fee of $2,156.60. The Nettleton Lumber Company, under its street use permit, utilizes 8,000 square feet of the street abutting its property for storage, and 5,000 square feet for structures. For this use it is charged an annual fee of $425.05. The only portion of Southwest Florida Street used for travel is a 20-foot trestle in the northerly portion of the street area, which provides vehicular and pedestrian access to the plaintiffs' plants from Harbor Avenue Southwest.

The plaintiffs have refused to pay the fees charged for the street use permits since 1958, and are challenging the validity thereof in this proceeding.

Fees in connection with such permits were first authorized in 1955 by Seattle city ordinance No. 83818. That ordinance was superseded in 1961 by ordinance No. 90047, but the language authorizing fees remained the same. Section 13 of ordinance No. 90047 provides:

The Board of Public Works of the City of Seattle is hereby further authorized and directed To prepare and adopt a schedule of fees applicable to all such permits heretofore or hereafter issued commensurate with the cost of administration, inspection and policing involved in the issuance and continuance of such permits and the use thereby granted, * * *. (Italics ours.)

Pursuant to this language, the Board of Public Works adopted a fee schedule purportedly commensurate with the cost of administration, inspection, and policing involved in the issuance and continuance of such permits and the use thereby granted.

Under the fee schedule, Baxter-Wyckoff Company's use was classified in category 7 and Nettleton Lumber Company's use in category 12. The schedule provides, with regard to these categories:

                                                                Inspection Fee     Minimum
                                                             --------------------  -------
                  7.  Piers, loading platforms, bridges,     10 cents per sq. ft
                      scales, overhead hoists, beams &       for 1st 1,000
                      cranes, all buildings in street area,  5 cents per sq. ft
                      and all building overhangs (cornices   for additional          10.00
                      excepted) in street area
                      that are under 50 feet in height
                      -------------------------------------
                       commercial ramps or steps, or any
                      similar installations
                 12.  Material storage or any other use      5 cents per sq. ft.
                      not covered in schedule                for 1st 1,000
                                                             1 cents per sq. ft.
                                                             for additional
                                                             Maximum--$100.00        10.00
                

Plaintiffs allege that the fees charged, as applied to them, are invalid because they bear no reasonable relation to the cost of administration, inspection, and policing involved in the issuance and continuance of the plaintiffs' permits and the use thereby granted, and are, in fact, revenue-raising charges. The city denies this and further contends that a municipality has no power to permit the permanent use of a public street for the purpose of conducting a private business thereon.

During the trial, evidence and testimony were introduced regarding the validity of the fees charged by the city and respondents' use of their respective properties. At its conclusion, the court made findings of fact supporting the plaintiffs' contention and concluded that the fees were invalid. It permanently enjoined the city from collecting from plaintiffs the permit fees claimed due but without prejudice, however, to the right of the city to recompute and collect reasonable fees reasonably related to the cost of administration, inspection and policing required under the ordinances, supra. The city appeals.

We think that we need only discuss the city's contention which is stated in its reply brief under the following heading:

Respondents' Permanent Encroachments Are Inconsistent with the Public's Easement for Travel in Southwest Florida Street.

In support of this proposition, appellant presents, in the next 7 pages, its arguments and citations of authorities beginning as follows:

It must be emphasized that all streets, including Southwest Florida Street are dedicated for public travel, that this right is paramount and that secondary subordinare uses are permissible only when not inconsistent with the primary purpose of public travel. This concept runs contrary to respondents' apparent contention that they may, as a matter of right, erect permanent structures in Southwest Florida Street * * * but by its very nature permanent occupancy of the street surface is a private use that decreases the effective area available for public travel. McQuillin, Mun. Corp., 3rd Ed., § 30.73, p. 704 states the general rule:

'* * * the general rule is that neither the municipality, the abutting owners, nor third persons can permanently encroach on a street for a private use, and that all such encroachments are nuisances, at least unless a permit has been duly granted and the municipality has power to permit the encroachment.'

Appellant has raised a very important issue by its assignments of error and arguments. This primary issue is whether the city may charge fees for permission to occupy a portion of a public street and use it exclusively for the erection and maintenance of permanent buildings and storage area in the operation of a private business. The ordinance involved in this case (No. 90047) provides, in § 13, as follows:

The Board of Public Works of the City of Seattel is hereby further authorized and directed to prepare and adopt a schedule of fees applicable to all such permits heretofoer or hereafter issued commensurate with the cost of administration, inspection and policing involved in the issuance and continuance of such permits And the use thereby granted. * * * (Italics ours.)

The trial court did not strike down the 'use thereby granted' provision in the ordinance. Indeed, it recognized that problems of regulation, inspection, and administration may arise according to the use permitted. However, it held that the fees charged these particular respondents were unreasonable, after considering only the factors of administration, inspection, and policing. The reasoning of the trial court (in its oral opinion) appears to be that the use granted can be considered as a factor only if it directly affects the present costs of administration, inspection, and policing, regardless of (1) the relative undesirability of the use, (2) the attendant legal and practical problems that may arise from such use, and (3) the authority of the city to refuse to issue the permit or prohibit the use entirely.

The basic rule applicable to this case is that there is no inherent right in a private individual to conduct private business in the public streets. McGlothern v. City of Seattle, 116 Wash. 331, 199 P. 457 (1921); State ex rel. Schafer v. City of Spokane, 109 Wash. 360, 186 P. 864 (1920); Allen v. City of Bellingham, 95 Wash. 12, 163 P. 18 (1917); McQuillin, Municipal Corporations § 30.48, p. 639. In Hadfield v.Lundin, 98 Wash. 657, 168 P. 516, L.R.A.1918B, 909 (1917), we said:

The streets and highways belong to the public. They are built and maintained at public expense for the use of the general public in the ordinary and customary manner. The state, and the city as an arm of the state, has absolute control of the streets in the interest of the public. No private individual or corporation has a right to the use of the streets in ...