Brister v. Council of City of Tacoma, 4589-II

• Decision Date: 21 October 1980
• Docket Number: No. 4589-II,4589-II
• Parties: Barbara BRISTER; Barbara Oathout and Vance Oathout, her husband; Darcy Wright; Meredith Walker and Glynn Walker, her husband; George Woolett and Carol Woolett, his wife; Ray Bowers and Jeanne Bowers, his wife; Brent Tracy and Beverly Tracy, his wife; and the Wedgewood Neighborhood Coalition, a Washington Non-Profit Corporation, Respondents, v. The COUNCIL OF the CITY OF TACOMA and Mayer Built Homes, Inc., a Washington Corporation, Appellants. MAYER BUILT HOMES, INC., a Washington Corporation, Appellant, v. WEDGEWOOD PARK INC., a Washington Corporation; and Westgate, Inc., a Washington Corporation, Defendants, and Barbara Brister; Barbara Oathout and Vance Oathout, her husband; Darcy Wright; Meredith Walker and Glynn Walker, her husband; George Woolett and Carol Woolett, his wife; Ray Bowers and Jeanne Bowers, his wife; Brent Tracy and Beverly Tracy, his wife; and the Wedgewood Neighborhood Coalition, a Washington Non-Profit Corporation, Respondents.
• Court: Washington Court of Appeals

Page 474

27 Wn.App. 474

619 P.2d 982

Barbara BRISTER; Barbara Oathout and Vance Oathout, her

husband; Darcy Wright; Meredith Walker and Glynn Walker, her

husband; George Woolett and Carol Woolett, his wife; Ray

Bowers and Jeanne Bowers, his wife; Brent Tracy and Beverly

Tracy, his wife; and the Wedgewood Neighborhood Coalition, a Washington Non-Profit Corporation, Respondents, v. The COUNCIL OF the CITY OF TACOMA and Mayer Built Homes, Inc., a Washington Corporation, Appellants.

MAYER BUILT HOMES, INC., a Washington Corporation, Appellant, v. WEDGEWOOD PARK INC., a Washington Corporation; and Westgate, Inc., a Washington Corporation, Defendants, and Barbara Brister; Barbara Oathout and Vance Oathout, her

husband; Darcy Wright; Meredith Walker and Glynn Walker, her

husband; George Woolett and Carol Woolett, his wife; Ray

Bowers and Jeanne Bowers, his wife; Brent Tracy and Beverly

Tracy, his wife; and the Wedgewood Neighborhood Coalition, a

Washington Non-Profit Corporation, Respondents.

No. 4589-II.

Court of Appeals of Washington, Division 2.

Oct. 21, 1980.

Harold T. Hartinger, Harding T. Roe, Asst. City Atty., Tacoma, for appellants.

Paul J. Kleinwachter, Tacoma, for respondents.

PETRIE, Judge.

This is the saga of a real estate developer's attempts to construct multi-family housing on portions of a 29.5 acre tract of land in Tacoma zoned "R-2", single family residential, and encumbered by restrictive deed covenants which prohibit business or commercial use or any use other than single family residences.

The cause comes to us on an appeal by the City of Tacoma and by Kurtis R. Mayer, d/b/a Mayer Built Homes, from a 1980 judgment which (1) reimposed the

restrictive deed covenants which previously, under specified restrictions, had been removed from portions of the land by a judgment in 1976; (2) enjoined Mayer from building anything but single family residences on the entire property; (3) provided a means of dissolving the injunction upon Mayer's presentation and the court's approval of a plan for development of a "buffer zone" between portions of the property and neighboring residential areas; (4) vacated and voided rezone ordinances, site plan approval, and plat approval adopted by the City of Tacoma for the property; (5) held Mayer in contempt of court for having disobeyed the court's 1976 judgment; (6) assessed "reasonable attorneys' fees" against Mayer; and (7) reserved jurisdiction in the cause for the purpose of exercising equitable jurisdiction and review over the development of the property. We affirm in part and reverse in part.

PROCEDURAL BACKGROUND

Mayer acquired title to the tract on September 12, 1974 under a deed from Wedgewood Park, Inc., who, in turn, had acquired title by a fulfillment deed of the same date from Westgate, Inc. ¹ Each deed recited that the conveyance was made subject to "all restrictions of record" and also provided:

Grantee covenants that the property shall not be used for business, commercial or industrial use or for any use other than single family residences. This covenant shall run with the land and shall be binding upon the Grantee and its successors and assigns in title for a period of 30 years from September 12, 1974.

In 1976 Mayer brought an action in Superior Court for Pierce County against Westgate and Wedgewood Park in which he declared an intention to develop a portion of the land as townhouses and apartment buildings. The court unconditionally decided that Mayer's title was free from any restrictions imposed by paragraphs 2, 7 and 9 of the contract of purchase between Westgate and Wedgewood, but only provisionally and restrictively removed the deed covenant restrictions. Paragraphs 3 and 5 of the 1976 judgment provide:

3. That the title of the plaintiff is subject to the restrictions set forth in the deeds dated September 12, 1974, and recorded September 19, 1974, under Auditor's Fee Nos. 2571931 and 2571932, wherein Westgate, Inc., and Wedgewood Park Inc., respectively, are the grantors; PROVIDED, HOWEVER, that such restrictions shall not prohibit the erection of residential townhouses and apartment buildings in accordance with local, state, and federal zoning, environmental, and other governmental regulation now or hereafter applicable to the property and in accordance with the following special restrictions:

(a) Residential townhouses and apartments shall be separated from Westgate's Wedgewood Park Addition, Book 31 of Plats, pp. 14 and 15, and Westgate's Wedgewood Park 2nd Addition, Book 39 of Plats, pp. 47 to 50, incl., by a buffer zone of single family detached residences comprising not less than 41% of the plaintiff's above described ownership.

(b) Residential townhouses and apartment buildings shall be limited in height to three levels not more than two and a half stories high and shall be constructed to standards compatible with the neighborhood, and of a quality and general concept comparable to that of the Polynesian Apartments and College Lake Apartments and with an exterior finish comparable to the plaintiff's development known as Steilacoom Woods in Steilacoom, Washington.

(c) Said property shall be developed in accordance with plans stipulate of the plaintiff, and any modification thereof which shall be approved by the Court. Developments shall proceed in such manner as to protect the interests of the owners of adjacent property, including the development of the single family buffer zone simultaneously with or preceding the development of the multiple family dwelling area, completion of landscaping, and screening.

5. That the court hereby reserve(s) jurisdiction in this cause for the purpose of exercising judicial oversight with respect to the development of the plaintiff's above described property, changes and modifications required by governmental authority, and for other appropriate and proper matters justifying an exercise of equitable jurisdiction. ²

There was no appeal from that judgment; nor has any party to this proceeding petitioned to modify the 1976 judgment.

Following entry of that judgment Mayer filed rezone applications with the City of Tacoma. He requested rezoning of the multi-family area from R-2 to the less restrictive classification of R-4-L PRD, Low Density Multiple-Family Planned Residential Development District, and he requested rezoning of the "buffer zone" area from R-2 to the more restrictive classification of R-2-PRD, One-Family Planned Residential Development District. The city's planning department recommended approval of the R-2 request and denial of the R-4-L PRD request. The matter then went before the city's hearing examiner. The examiner noted (and filed as an exhibit), the Superior Court's 1976 findings conclusions, and judgment. Specifically, the examiner stated in his report to the city council that the court "reserved jurisdiction for the purpose of exercising judicial oversight with respect to the development of the plaintiff's above described property."

Notwithstanding the hearing examiner's recognition of the 1976 court action, he observed that "this decision has no effect upon the City of Tacoma, who was not a party thereto ..." On January 17, 1978, the city council adopted an ordinance reclassifying the property into two requested classifications.

Next, Mayer obtained from the city council tentative approval of a plat of the buffer zone known as Joseph Mayer's First Addition. Mayer then sought site plan approval to develop 46 single-family residences within the buffer zone. The planning department denied the application on the basis that it was inconsistent with policies previously established by Tacoma's Land Use Management Plan. The department noted, among other items, that Mayer's application indicated he would retain ownership to the houses and would rent the premises to qualified tenants under a Section 8 housing proposal of the U. S. Department of Housing and Urban Development. ³ The department's denial was based essentially on the determination that the average size of the planned units, revised to 1,016 square feet, was considerably less than the average size of neighboring houses to the north and east of the project. Protesting neighbors expressed dissatisfaction with the project mainly on the basis of their belief that a 46-unit, low income rental project would adversely affect the neighborhood and was inconsistent with Mayer's previously announced plans for the development.

The matter was presented to the city's hearing examiner, and following several hearings he recommended partial and conditional approval. A key condition recommended by the examiner was that Mayer modify the project to provide an average living area for the planned units of 1,200 square feet or, alternatively, that he present to the city through an independent appraisal assurance that the units as planned would not adversely affect the neighborhood. ⁴ Both Mayer and the protesting neighbors were dissatisfied with the hearing examiner's final report. Nevertheless, only Mayer appealed to the city council, and that appeal was limited to the examiner's first alternative condition, i. e., that the project be revised to provide an average of 1,200 square feet per unit.

Prior to city council action on Mayer's appeal, he did provide, through an appraiser's report, evidence that the project as planned would not adversely affect the neighborhood. The city council accepted this report without holding a hearing on the sufficiency of the report and without referral to the hearing examiner for a hearing on that issue. Accordingly, Mayer dismissed the appeal, and the city council adopted a resolution on June 3, 1979 which, by its terms "tentatively accepted and approved" the site plan for Joseph Mayer's First Addition subject to the conditions set forth in the two reports of the hearing examiner. ⁵

On July 3, 1979 the protesting neighbors sought a writ of certiorari in Superior Court for Pierce County...