City of Ferndale v. Friberg
| Decision Date | 05 February 1987 |
| Docket Number | No. 52234-1,52234-1 |
| Citation | 107 Wn.2d 602,732 P.2d 143 |
| Parties | The CITY OF FERNDALE, a municipal corporation, Appellant, v. Gunner B. FRIBERG, and Hazel Friberg, husband and wife, and the marital community composed thereof; John A. Friberg and Geraldine L. Friberg, husband and wife, and the marital community composed thereof; Federal Land Bank of Spokane, a corporation; Horizon Mutual Savings Bank, a banking corporation; Peoples State Bank, a banking corporation; and any and all persons unknown, who have an interest or claim in the real estate described herein, Respondents. The CITY OF FERNDALE, a municipal corporation, Appellant, v. CHUN MING WANG and Kam Chi Cheng, husband and wife, and the marital community composed thereof; Ronald J. Nichols and Mary C. Nichols, husband and wife, Clifford J. Norris and Delores J. Norris, husband and wife, Kenneth L. Caughell and Joyce A. Caughell, husband and wife, Kaye Norris Clevenger and Steven L. Clevenger, husband and wife, Herbert L. Larson and Jean Larson, husband and wife, Paul B. Hanson and Ann Hanson, husband and wife, doing business as Church Top Enterprises; Gustav Engler, Jr., and Fern E. Engler, husband and wife, and the marital community composed thereof, and any and all persons unknown, who have an interest or claim in the real estate described herein, Respondents. |
| Court | Washington Supreme Court |
Preston, Thorgrimson, Ellis & Holman, Robert B. Mitchell, Forrest W. Walls, Seattle, for appellant.
Rolf Beckhusen, Bellingham, for respondent Friberg.
Smith & Rosellini, Jacob L. Smith, Lynden, for respondents Chun Ming Wang, et al.
The primary issues in this case are the applicability and constitutionality of RCW 84.34.300-.380, which create an assessment exemption for open space farm and agricultural lands. Appellant, the City of Ferndale, challenges a summary judgment order in favor of respondents in the City's action to foreclose assessment liens on respondents' properties. We affirm.
Respondents Fribergs own a farm of approximately 70 acres. Respondents Wang and Cheng own a farm of 43 acres. In 1976, both farms were reclassified as open space farm and agricultural land under RCW 84.34, exempting them from liability for property taxes.
On April 16, 1979, the City adopted Ordinance 592, which created Utility Local Improvement District 5 (ULID 5). The respondents signed a petition favoring the formation of the district, but because of procedural defects in the petition, the City formed ULID 5 by resolution. On June 7, 1979, RCW 84.34.300-.380 became effective, exempting properties classified as farm and agricultural land from special benefit assessments for local improvements.
On August 18, 1980, the City adopted Ordinance 608 approving and confirming the assessment roll and assessments for ULID 5 for the construction of certain improvements and levying and assessing amounts thereof against property shown on the assessment roll. The bonds funding the improvements were not issued and sold to bondholders until after the City adopted Bond Ordinance 629 on April 6, 1981.
Respondents' properties were included on the assessment roll. They did not challenge the assessments at the assessment hearing, nor did they appeal from the final assessment roll. Neither property is served by the water supplied by ULID 5.
The City began foreclosure proceedings against both respondents in 1984 for nonpayment of assessments. All parties moved for summary judgment. In an oral ruling, the trial court granted the respondents' summary judgment motions. The City moved for reconsideration or, in the alternative, for an order joining the bondholders as necessary parties. On October 16, 1985, the trial court denied the City's motion and entered summary judgment for the respondents, and ordered that the actions be consolidated.
First, we address whether RCW 84.34.300-.380 are to be applied retroactively. RCW 84.34.320 provides in pertinent part:
Any farm and agricultural land which is designated for current use classification pursuant to chapter 84.34 RCW at the earlier of the times the legislative authority of a local government adopts a resolution, ordinance, or legislative act ... (2) to approve or confirm a final special benefit assessment roll relating to a sanitary and/or storm sewerage system, domestic water supply and/or distribution system, or road construction and/or improvement, which roll would have included such land but for such classification designation, shall be exempt from special benefit assessments or charges in lieu of assessment for such purposes as long as that land remains in such classification ...
(Italics ours.)
The City claims that the exemption provided by RCW 84.34.320 does not apply because the statute was enacted after the formation of ULID 5. The respondents claim that the exemption does apply where no bonds were issued, construction undertaken, or assessments made until after the statute became effective.
The presumption is that a statute will only apply prospectively, unless (1) there is legislative intent to apply the law retroactively, or (2) the statute is remedial and retroactive application would further its remedial purpose. Macumber v. Shafer, 96 Wash.2d 568, 570, 637 P.2d 645 (1981); Johnston v. Beneficial Management Corp., 85 Wash.2d 637, 641, 538 P.2d 510 (1975).
To ascertain legislative intent, this court generally looks for express language indicating retroactive application. See, e.g., In re Marriage of MacDonald, 104 Wash.2d 745, 748, 709 P.2d 1196 (1985); Miebach v. Colasurdo, 102 Wash.2d 170, 180, 685 P.2d 1074 (1984); Bodine v. Department of Labor & Indus., 29 Wash.2d 879, 888, 190 P.2d 89 (1948). Legislative intent may also be inferred from other evidence, such as the use of past tense in the language of the statute, or a legislative statement of a strong public policy that would be served by retroactive application. Johnston, 85 Wash.2d at 641-42, 538 P.2d 510.
In the present case, there is no express legislative statement of retroactive application. However, the past tense is used in important provisions, such as RCW 84.34.310(6), defining "[s]pecial benefit assessment" as one "levied or capable of being levied ..." (Italics ours.) Additionally the Legislature's intent to protect farms is clear. RCW 84.34.300 provides:
The legislature finds that farming and the related agricultural industry have historically been and currently are central factors in the economic and social lifeblood of the state; that it is a fundamental policy of the state to protect agricultural lands as a major natural resource in order to maintain a source to supply a wide range of agricultural products; and that the public interest in the protection and stimulation of farming and the agricultural industry is a basic element of enhancing the economic viability of this state. The legislature further finds that farmland in urbanizing areas is often subjected to high levels of property taxation and benefit assessment, and that such levels of taxation and assessment encourage and even force the premature removal of such lands from agricultural uses.
* * *
It is therefore the purpose of the legislature to establish, with the enactment of RCW 84.34.300 through 84.34.380, another mechanism to protect agricultural land which creates an analogous system of relief from certain benefit assessments for farm and agricultural land.
Liberal construction of legislation with a view to effectuating legislative purpose is favored. 3 C. Sands, Statutory Construction, § 60.02 (4th ed. 1974). Retroactive application in this case would further the strongly stated public purpose.
A statute may be applied retroactively where it is remedial in nature. Macumber, 96 Wash.2d at 570, 637 P.2d 645. "A statute is remedial when it relates to practice, procedure, or remedies and does not affect a substantive or vested right." Miebach, 102 Wash.2d at 181, 685 P.2d 1074. In the present case, no vested rights existed by the effective date of the statute. The assessments were neither approved nor was construction begun until over 1 year after the effective date. The bonds were not issued until at least 2 years after the statute passed. See AGO 5 (1976) ().
We affirm the trial court's retroactive application of RCW 84.34.300-.380.
Second, the City claims the respondents waived their right to contest the assessments by petitioning for the creation of ULID 5, and by not objecting to the assessment roll or pursuing statutory methods for appeal. The City also claims that respondents are estopped by their actions to make this challenge.
Waiver is defined as the intentional and voluntary relinquishment of a known right in existence at the time of the waiver. Panorama Residential Protective Ass'n v. Panorama Corp., 97 Wash.2d 23, 28, 640 P.2d 1057 (1982). The act of waiver must be inconsistent with any other intent than to waive the right. Wagner v. Wagner, 95 Wash.2d 94, 102, 621 P.2d 1279 (1980).
Estoppel requires three elements: (1) a statement or act inconsistent with the claim afterward asserted; (2) action by the other party based on the act or statement; and (3) injury to such other party if the first party is allowed to contradict or repudiate its act. Emrich v. Connell, 105 Wash.2d 551, 559, 716 P.2d 863 (1986); Wilson v. Westinghouse Elec. Corp., 85 Wash.2d 78, 81, 530 P.2d 298 (1975). We find neither waiver nor estoppel applies to the specific acts or omissions of the respondents.
The respondents' signatures, or the signatures of their predecessors in interest, on the petition were made before RCW 84.34.300-.380 became law. They could not have waived rights created by these statutes by signing the petition because their right to an exemption was not yet in existence nor known to them. Estoppel also fails since the City did not act based...
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