Haslund v. City of Seattle, 43675

Citation86 Wn.2d 607,547 P.2d 1221
Decision Date25 March 1976
Docket NumberNo. 43675,43675
PartiesFred K. HASLUND, Jr., et al., Respondents, v. The CITY OF SEATTLE, a Municipal Corporation, Appellant.
CourtUnited States State Supreme Court of Washington

John P. Harris, Corp. Counsel, J. Roger Nowell, Jorgen G. Bader, Seattle, for appellant.

Lycette, Diamond & Sylvester, Josef Diamond, Robert E. Ratcliffe, John T. Petrie, Lyle L. Iversen, Seattle, for respondents.

UTTER, Associate Justice.

A jury verdict of $2,896,534 was entered in favor of plaintiffs, Roanoke Reef Associates and the individuals comprising the association, against the defendant, the City of Seattle, for damages alleged to have resulted from issuance of an invalid building permit by the City. Appellant City contends the trial court committed error in six respects: failure to properly instruct the jury on theories of liability; failure to recognize governmental immunity; failure to bar the plaintiffs' claim by application of the statute of limitations; failure to find the City's employee acted ultra vires; failure to find plaintiffs were collaterally estopped in bringing this suit, and failure to find respondents did not timely file their claim against the City. We find no error and affirm the verdict.

After purchasing a parcel of lakefront property in 1967, respondents filed an application for a building permit with appellant's building department. No permit was issued at this time inasmuch as complete plans, required by the city building code, did not accompany the application. Subsequently, respondents obtained from the State of Washington a 30-year lease of submerged land adjacent to the property which, under then existing bulk and density requirements, would allow construction of 112 residential units at the site. In 1969, respondents' original application for a building permit was refiled. Respondents' agents submitted final plans and requested a building permit. At this time the proposed project met existing zoning requirements and no variance was required.

On May 8, 1969, appellant issued a permit 'subject to structural and ordinance check.' Under established city procedures, this conditional permit did not allow respondents to commence actual construction at this time. Respondents subsequently applied for a street use permit to build an access ramp to their proposed building. Such access was required before appellant could approve the plans and allow construction to commence. Appellant's board of public works denied the street use permit. In May 1970, respondents brought an action against appellant seeking a writ of mandamus compelling the issuance of a street use permit 'and directing Defendant City of Seattle to permit (respondents) to commence construction under the building permit issued by the City on May 8, 1969.' The Superior Court found the respondents' building permit application complied with the building and zoning codes and that the permit had been issued on May 8, 1969. The court entered a judgment on June 11, 1970 directing appellant to issue a street use permit and 'to issue and deliver to (respondents) a building permit for construction of an apartment building . . .' This judgment was not appealed.

In accordance with the writ of mandamus, appellant in October 1970 approved respondents' building plans, removed the condition on the permit and issued the card necessary for respondents to commence construction. Actual construction commenced in March 1971. The following month respondents' building was renewed for a second time pursuant to a city ordinance providing that a renewal may be obtained if work is started and is progressing to the satisfaction of the superintendent of buildings.

In September 1971, the Eastlake Community Council sued to enjoin construction of the building, naming both respondents and appellant as codefendants. In December 1971, respondents' mortgage lender withdrew its commitment to make advancements on a construction loan pending resolution of the Eastlake Community Council suit. Respondents continued with construction of the building. On July 19, 1973, this court held, Inter alia, that the building permit issued on May 8, 1969 was invalid because it had been issued conditionally in violation of the city building code. Eastlake Community Council v. Roanoke Associates, Inc., 82 Wash.2d 475, 513 P.2d 36 (1973). Following that decision, respondents conferred with appellant and were advised that a new building permit was required and that application must be made for variances and a conditional use permit because the zoning ordinances had been amended since the original building permit application. Efforts by respondents to obtain a new building permit were unsuccessful.

Evidence was introduced indicating that respondents attempted to sell the property and find alternate uses, but the site had little suitability for purposes other than an apartment building. In November 1973, respondents filed a claim for damages against appellant and on February 6, 1974, commenced the present action.


The central issue presented during the trial of respondents' allegations in this case was the existence of a legal theory supporting the damage claim. In their complaint respondents pleaded that 'by reason of the wrongful actions of the defendants in issuing an invalid building permit the plaintiffs have been damaged in the sum of $7,000,000. This cause of action was predicated on two separate legal theories, both presented to the court below in respondents' trial brief, negligence per se and common law negligence. 1 The case thus presented an issue of first impression in this jurisdiction and, to this date, one infrequently considered by the courts of other states. 2

The trial court submitted to the jury three instructions which discussed liability for issuance of an invalid building permit. Instruction No. 5 stated:

The plaintiffs have the burden of proving . . .

. . . That the defendant is liable for any losses or damages which were proximately caused to the plaintiffs by the issuance of the void building permit. The burden of proof is upon the plaintiffs to prove that their losses and damages were proximately caused by the wrongful issuance of a building permit by the defendant City.

No objection was made to this instruction. Instruction No. 8 informed the jury briefly of respondents' allegations, of appellant's denials, and of the decision of this court holding the permit of May 8, 1969 to be invalid and void as issued in violation of the Seattle building code. The court further stated in its instruction No. 8: 'If you find that the losses and damages, if any, to the plaintiffs were proximately caused by the issuance by the City of a void permit, your verdict shall be for the plaintiffs.' Appellant's objection to this instruction extended only to the language regarding damages and did not question whether it correctly stated the theory of liability:

Turning now to the Court's proposed instructions, in Instruction No. 8, I believe the last paragraph at least should be modified, and I suggest the following changes to the last paragraph: 'If you find that,' and insert 'all or some of the losses and damages to the plaintiffs were proximately caused by the issuance by the City of a void permit, your verdict shall be for the plaintiffs.' And then insert, 'in such amounts as you find.' I think that without that change the jury is given too great a latitude and is led to believe that the plaintiffs have the right to recover all of their damages, assuming that any of their damages were proximately caused by defendant's acts.

What I'm trying to suggest here is that the jury could find that the defendants proximately caused some damage to the plaintiff, and then it would be incumbent upon the jury to determine how much. The way that the Court's proposed Instruction No. 8 reads in the last paragraph is highly suggestive that all of the plaintiffs' damages, as claimed, are recoverable if the jury finds proximate causation.

Following appellant's objection, the trial court inserted the words 'if any' after the word 'damages' and no further objection was made. Instruction No. 9 repeated portions of instructions Nos. 5 and 8, and appellant objected on the sole grounds that it prejudicially emphasized the fact that the building permit had been declared invalid by this court.

The appellant offered four instructions pertaining to the theory of liability. In defendant's proposed instructions Nos. 3 and 6, appellant sought to present respondents' claim as one for intentional interference with prospective economic advantage. See King v. Seattle, 84 Wash.2d 239, 525 P.2d 228 (1974). Since there was insufficient evidence to support this theory of the case, the proposed instructions were properly refused. Elmer v. Vanderford, 74 Wash.2d 546, 552, 445 P.2d 612 (1968); DeKoning v. Williams, 47 Wash.2d 139, 141, 286 P.2d 694 (1955). Proposed instruction No. 1 would have informed the jury that appellant denied it acted wrongfully, denied respondents' reliance on the building permit and denied respondents' damages were proximately caused by appellant's conduct. In its proposed instruction No. 2, appellant sought to charge the jury that if the 'City Building Department acted reasonably in issuing the building permit under all of the circumstances in this case, then even though the permit was later disclosed to be invalid you are instructed that the City did not act wrongfully within the meaning of these instructions.' The court refused to give the above instructions and in taking exception appellant's counsel stated, 'I might say in respect to the defendant's first proposal, I believe the issue of wrongfulness of the issuance of the building permit is a question of fact, which plaintiffs have pleaded wrongfulness, and the jury should be instructed on the issue as defendant's proposed Instructions 1 and 2 would do.'

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