Esping v. Pesicka, 5289-I

• Decision Date: 03 April 1978
• Docket Number: No. 5289-I,5289-I
• Citation: 19 Wn.App. 646,577 P.2d 152
• Parties: Roderick E. ESPING, Harold Wynn and Dorothy L. Wynn, his wife, Appellants, 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, Appellant, 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 the City of Tukwila, a Municipal Corporation, Edgar D. Bauch, as Mayor of the City of Tukwila, a Municipal Corporation, Steven Hall, as Director of Public Works for the City of Tukwila, a Municipal Corporation, and the City of Tukwila, a Municipal Corporation, Respondents.
• Court: Washington Court of Appeals

Page 646

19 Wn.App. 646

577 P.2d 152

Roderick E. ESPING, Harold Wynn and Dorothy L. Wynn, his wife, Appellants, 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, Appellant, 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 the City of Tukwila, a

Municipal Corporation, Edgar D. Bauch, as Mayor of the City

of Tukwila, a Municipal Corporation, Steven Hall, as

Director of Public Works for the City of Tukwila, a

Municipal Corporation, and the City of Tukwila, a Municipal

Corporation, Respondents.

No. 5289-I.

Court of Appeals of Washington, Division 1.

April 3, 1978.

Dobson, Houser & Dobson, Wyman K. Dobson, Renton, for appellants.

LeSourd, Patten, Fleming & Hartung, Lawrence E. Hard, Warren T. Chapman, Seattle, for respondents.

JAMES, Judge.

Appellants, plaintiffs below, sought to enjoin the formation of a local improvement district (LID) by the City of Tukwila. The named individual respondents are appropriate city officials. We affirm the trial judge's refusal to permanently enjoin the formation of the proposed LID.

The facts are not in dispute. On December 15, 1975, the city council of Tukwila passed a resolution declaring its intention to create a local improvement district 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. Five of the owners filed protests to the formation of the LID pursuant to RCW 35.43.180, which provides:

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 . . .

As determined by the preliminary estimates and the assessment roll, however, their properties were subject to only 54 percent of the total cost of the contemplated improvement. The 46 percent balance of the total cost was assessed against two tracts owned by Graydon Smith, who did not protest.

Smith, however, was bound by a "Property Use and Development Agreement" which his predecessor in interest had entered into with the City of Tukwila. The agreement, which by its terms is binding upon successors in interest, provides for a change in zoning permitting 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. Neither Smith nor his predecessor have developed the property. Nor have they made any of the improvements as required by the agreement.

The improvements proposed by the LID include, but are more extensive than, those specified in the agreement. Additionally, the LID provides for utilities and improvements to the street which provides access to Smith's tracts. This street also abuts and serves the protesting appellants' properties.

Appellants contend that because 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 LID cost assessed against his property should be excluded in calculating the "total cost" under the protest provisions of RCW 35.43.180. We do not agree.

Cities are given the authority by statute to establish the boundaries for a local improvement district. RCW 35.43.080. The statute provides that an LID "shall embrace as nearly as practicable all the property specially benefited by the improvement." In upholding the constitutionality of this statute in Citizens for Underground Equality v. Seattle, 6 Wash.App. 338, 343, 492 P.2d 1071, 1074 (1972), we concluded:

the constitutionality of allowing the city council broad discretion in fixing local improvement district boundaries has been judicially approved. In re Orcas Street, 87 Wash. 218, 223, 151 P. 506 (1915); In re Eighth Ave. Northwest, 77 Wash. 570, 138 P. 10 (1914). Courts may not set aside the boundaries fixed by the city council except upon a clear showing of arbitrary action. In re...