Esping v. Pesicka
| Decision Date | 16 August 1979 |
| Docket Number | No. 45877,45877 |
| Citation | 92 Wn.2d 515,598 P.2d 1363 |
| Parties | Roderick E. ESPING, Harold Wynn and Dorothy L. Wynn, his wife, Petitioners, v. Phyllis D. PESICKA, Gary Van Dusen, Dwayne Traynor, Catherine Harris, Dan Saul, Dwight R. Gardner and George Hill, Council Members of the City of Tukwila,Steve Hall, Public Works Director and City Engineer of the City of Tukwila,Edgar D. Bauch,Mayor of the City of Tukwila, and the City of Tukwila, Respondents. TUKWILA ASSOCIATES, a limited partnership, By and Through its general partner, Gus Y. NIKAITANI, Petitioner, v. Dwight R. GARDNER, M. Catherine Harris, George Hill, Phyllis Pesicka, Dan Saul, Dwayne D. Traynor and Gary Van Dusen, as members of the City Council of theCity of Tukwila, a municipal corporation, Edgar D. Bauch, as Mayor of the Cityof Tukwila,a municipal corporation, Steven Hall, as Director of Public Works for the Cityof Tukwila, a municipal corporation, and the City of Tukwila, a municipalcorporation, Respondents. |
| Court | Washington Supreme Court |
Dobson, Houser & Dobson, Wyman K. Dobson, Renton, for petitioners.
LeSourd, Patten, Fleming & Hartung, Lawrence E. Hard, John F. Colgrove, Seattle, for respondents.
Petitioners are property owners challenging the formation of a local improvement district (LID) pursuant to RCW 35.43.180. Respondents are the City of Tukwila and a number of city officials. The trial court denied petitioners' application for a writ of prohibition, and the Court of Appeals affirmed the trial court's ruling. Esping v. Pesicka, 19 Wash.App. 646, 577 P.2d 152 (1978); Esping v. Pesicka, 21 Wash.App. 96, 583 P.2d 671 (1978). The matter comes to us on a petition for discretionary review. We reverse.
On December 15, 1975, the City Council of Tukwila passed resolution No. 507 declaring its intention to create an LID and assess the cost of the proposed improvement against owners of property within the district. The proposed LID encompasses property owned by six different property owners. Graydon Smith owns property which is subject to 46 percent of the total cost of the project. The remaining five property owners are jointly subject to 54 percent of the total cost of the contemplated improvement.
Smith is bound by a "Property Use and Development Agreement" into which his predecessor in interest had entered with the City of Tukwila. The agreement, which by its terms is binding upon Smith as the successor in interest, provides for a change in zoning which would then permit the construction of apartment houses upon the two tracts. The agreement provides in part that, in consideration of the zoning change, the property owner will be required to provide certain utilities and improvements to two streets which abut his property "as buildings and improvements are made on the property." (Exhibit 26.) A number of improvements which Smith is contractually bound to make are similar to those included within the proposed LID. The improvements proposed by the LID, however, are more extensive than those specified in the agreement between Smith and the city. The city granted Smith building permits in 1975, and he has constructed apartment buildings upon a substantial portion of the property located within the proposed LID boundaries. The city, however, has not required Smith to provide any of the improvements contemplated under the agreement.
All of the property owners except Smith filed protests to the formation of the LID. The power to block the formation of an LID is conferred by RCW 35.43.180, which provides in part:
The jurisdiction of the legislative authority of a city or town to proceed with any local improvement initiated by resolution shall be divested by a protest filed with the city or town council within thirty days from the date of passage of the ordinance ordering the improvement, signed by the owners of the property within the proposed local improvement district or utility local improvement district Subject to sixty percent or more of the total cost of the improvement . . .
(Italics ours.)
In challenging the formation of the LID under RCW 35.43.180, petitioners argued that since Smith is obligated to provide some of the utilities and improvements proposed by the LID, either his property should be excluded from the boundaries of the LID or the amount of the assessment against his property should be excluded in calculating the "total cost" under the protest provisions of RCW 35.43.180. Petitioners took the position that the city's relinquishment of its rights under the contract amounted to a contribution to the LID paid by the city and that, pursuant to Washington case law, a contribution to an LID by a city must be deducted from the total cost of the improvement prior to determining what percentage of the property owners protested the formation of the LID. See Kasper v. Edmonds, 69 Wash.2d 799, 420 P.2d 346 (1966), and Thymian v. Massart, 69 Wash.2d 806, 420 P.2d 351 (1966).
The trial court rejected petitioners' arguments and entered a judgment for the city. On appeal, the Court of Appeals initially held in Esping v. Pesicka, Supra, that the city's conditional release of Smith's obligations under the agreement was not the equivalent of a cash contribution by the city such that its value had to be excluded from the "total cost" computation. This ruling was predicated on the Court of Appeals' mistaken understanding that Smith had not yet developed his property, a condition precedent to his obligation to provide the improvements. However, on rehearing and after noting that the property had in fact been developed, the Court of Appeals again held that the city had not acted improperly in relinquishing its rights under the agreement with Smith in favor of those improvements to result from the formation of the LID and further held that such relinquishment did not constitute a contribution of public funds to the...
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