City of Redmond v. Kezner

• Decision Date: 28 December 1973
• Docket Number: No. 1651--I,1651--I
• Citation: 10 Wn.App. 332,517 P.2d 625
• Parties: CITY OF REDMOND, Respondent, v. George KEZNER and Jane Doe Kezner, his wife, Appellants.
• Court: Washington Court of Appeals

Page 332

10 Wn.App. 332

517 P.2d 625

CITY OF REDMOND, Respondent, v. George KEZNER and Jane Doe Kezner, his wife, Appellants.

No. 1651--I.

Court of Appeals of Washington, Division 1.

Dec. 28, 1973.

Boyd, Decker & Hanson, Richard L. Evans, Bellevue, for appellants.

John D. Lawson, Redmond City Atty., Redmond, for respondent.

HOROWITZ, Judge.

Defendants husband and wife appeal a decree ordering defendant husband, George Kezner, to specifically perform his written agreement to convey certain of his separate real property to plaintiff City of Redmond, the agreement being contained in a street system agreement to which defendant husband and other property owners are parties. The trial court rejected defendants' contentions that the agreement was an illegal relinquishment of the city's legislative power or, alternatively, the city had disentitled itself from obtaining specific performance by its anticipatory repudiation of the obligations of the agreement.

Defendants assign no error to the findings. The certified statement of facts does not contain the testimony received at trial. The statement of facts contains only the court's oral opinion and exhibits. The controlling facts shown by the findings and the statements of facts consistent with those findings are the following. References to defendant refer only to defendant husband.

Shortly prior to June 26, 1964, various property owners, including defendant, signed a petition to have their then unimproved property rezoned from argicultural (A) to medium-commercial (CM). Prior to that date, the city had adopted a comprehensive plan calling for commercial use of the area described in the plan, including the area covered by the rezoning petition. Following the adoption of the comprehensive plan and prior to June 26, 1964, the city had itself determined that the commercial development of the area required the establishment of a street system for traffic and utility installation purposes. It thereupon prepared a proposed 'Street System Agreement,' a copy of the material portion of which is placed in the margin. ¹ The property owners, including defendant, signed that agreement.

On July 29, 1964 the previously signed rezoning petition was filed with the city of Redmond. The City Council then enacted ordinance No. 349 granting the petition. The court found that 'the street-system agreement and the rezoning ordinance were concomitant documents.' Finding of fact No. 5.

Subsequent to 1964, several meetings were held between the property owners concerned and the city officials concerning the street system plan. In 1967, a proposed Street Plan A was developed. There is no finding that the plan was adopted by the city. Plan B was later developed. On April 2, 1968,

the Redmond City Council passed a motion to adopt Street Plan B, which contained several material changes over Plan A and the original plan attached to the Street System Agreement.

Finding of fact No. 6.

In the latter part of 1968 and early 1969, following the adoption of the April 2, 1968 motion, several owners of property in a large commercially zoned area, which included the area rezoned by ordinance No. 349, formed a local improvement district to improve certain streets within the entire area. These included certain streets in the area rezoned by ordinance No. 349. On February 11, 1969, pursuant to a petition to which defendant was not a party, the Redmond City Council adopted ordinance No. 486. It ordered.

the formation of a local improvement district (LID 69--ST--14) for the construction of the streets and utilities upon a portion of the internal street system. The LID called for the improvement of a portion of the streets contained in the original Street System Agreement and was a partial implemantation (sic) of Plan B, and materially altered the plan by calling for the improvement of some different streets than those contained in the original street plan or in Plan A.

Finding of fact No. 7. We later discuss the changes referred to in the finding.

Several of the property owner parties to the June 26, 1964 street system agreement upon the city's request, conveyed and dedicated the necessary rights of way for the establishment and improvement of the streets as contemplated by LID 69--ST--14. Defendant Kezner refused. Finding of fact No. 8.

The court concluded that:

The Street System Agreement . . . constituted a concomitant agreement with the rezoning of the respective properties . . . The rezoning by the City furnished the consideration for the undertakings of the property owners in the Street System Agreement . . . The City fully performed its part of the agreement by the rezoning of the subject properties . . . and had the right . . . to require the performance by the property owners to deed and dedicate the necessary street rights-of-way when requested to do so by the City. The City has not breached the agreement and it is not necessary that the City be required to improve all of the streets contemplated at one time and it is inherit (sic) that the City would need time to determine descriptions, to acquire deeds to the street rights-of-way and develop necessary financing and construction details.

Conclusion of law No. 2. The court concluded also the city was entitled to specific performance of defendant's agreement, which included the conveyance of '30 feet of the right-of-way for the development of N.E. 87th Street . . . in furtherance of the street-system agreement and was not requesting the defendant George Kezner to deed something which was not a part of the agreement.' Conclusion of law No. 3. The court then entered the decree for specific performance from which defendants appeal.

Defendants assign error to the entry of portions of conclusions of law No. 2 and 3 and in concluding the street system agreement was not 'void as an unlawful delegation of legislative discretion and power.' Assignment of error No. 4. Defendants further assign error to the court's dismissal of their counterclaim for damages. The last assignment of error is not argued and must be considered abandoned. State v. J--R Distributors, Inc., 82 Wash.2d 584, 512 P.2d 1049 (1973); Dickson v. United States Fidelity & Guar. Co., 77 Wash.2d 785, 466 P.2d 515 (1970); Daggett v. Tiffany, 2 Wash.App. 309, 467 P.2d 629 (1970).

We first consider and uphold the legality of the June 26 1964 street system agreement. The findings show the property owners, including defendant, were desirous of rezoning their then unimproved property from agricultural to medium-commercial, a rezoning consistent with the comprehensive plan theretofore adopted by the city. It fairly appears the city, after the signing but prior to the filing of the rezoning petition, insisted that, as a condition of the city rezoning the property, the owners agree to the city's proposed street system plan and further agree, upon the city's request, to deed and dedicate certain of their lands to the city to help put the plan into effect. The city's insistence is explained by a recital in the agreement that the system was required 'for the internal circulation of traffic and installation of utilities . . .' The agreement in form did not expressly require the city to rezone, nor provide as to how or when the street improvements would be installed and at whose expense. The agreement, including the owners' obligations as therein set forth, was, however, expressly conditioned upon the area being rezoned medium-commercial. The property owners signed the agreement. The city performed the condition and then later demanded the signatory property owners, including defendant, convey and dedicate the land therein described as agreed. Defendant alone refused.

Defendant defends his refusal on the ground the concomitant street system agreement is void as illegal. He treats the agreement as one requiring the city to rezone the property and to perform and implement the street system plan. He argues that by the agreement the city has bargained away its legislative power for the sole benefit of private persons from whom a consideration has been exacted, namely, the conveyance and dedication of parts of their land. We do not agree. We agree with the trial court that the holding and rationale of State ex rel. Myhre v. Spokane, 70 Wash.2d 207, 422 P.2d 790 (1967), requires we uphold the legality of the agreement.

The Myhre case involved the validity of an ordinance amending the comprehensive zoning ordinance of the city of Spokane so as to reclassify certain property from "R1' One-Family, Residence Zone' to "B2' Community Business Zone.' At the time the amendatory ordinance was adopted, the city entered into a concomitant zoning agreement with the owners of property in the reclassified area. Subsequently, certain residential property owners of the city brought an action to attack the validity of the amendatory ordinance as ultra vires. The court rejected the attack. It described the agreement it upheld to include the following:

The agreement recognized that the shopping center would increase the flow of traffic around its perimeter, which would entail widening the streets for traffic safety, and the parties agreed that the sum of $75,000 represented.

a fair estimate of the cost of completing the improvements . . . necessitated by the aforesaid rezoning. This sum shall represent the total responsibility of the Company for the accomplishment be the City of the street improvements . . .. From and after date of receipt thereof such funds shall be Conclusively and irrevocably committed to finance said improvements . . ..

3. Construction of the planned shopping center as one unit together with all ground improvements are expected to be commenced within two years after the effective date of the ordinance charging the classification . . .. (Italics ours.)

The company agreed to deed to the city without cost, certain of its lands for the widening of the adjacent streets within the city...