Mealey v. City of Laramie

Decision Date31 July 1970
Docket NumberNo. 3866,No. 12,12,3866
Citation472 P.2d 787
PartiesCatherine MEALEY, individually, and on behalf of herself and all other property owners in Improvement Districtwho having filed protests with the City Council are similarly situated, Appellant (Plaintiff below), v. The CITY OF LARAMIE, Wyoming, a municipal corporation, Vern Shelton, Mayor, Lawrence W. Clark, Larry Deaver, Frank Moore, James Spiegelberg, William Ward and Richard Weeks, members of the City Council of said City and Harold Yungmeyer, City Manager of said City, Appellees (Defendants below).
CourtWyoming Supreme Court

Catherine Mealey, Laramie, for appellant.

Dean W. Borthwick, Cheyenne, Thomas S. Smith, City Atty., Laramie, for appellees.

Before GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.

Mr. Chief Justice GRAY delivered the opinion of the court.

Plaintiff, on her behalf and on behalf of others similarly situated as owners of property within Local Improvement District No. 12, herein described as a 'downtown improvement district' in the city of Laramie, Wyoming, and created by the adoption of City Ordinance No. 355, brought an action seeking to have said ordinance declared unconstitutional, illegal, null and void on several grounds and also sought to enjoin the enforcement thereof. On motion of the defendants, pursuant to Rule 56, W.R.C.P., summary judgment was entered below upholding the validity of the ordinance and denying injunctive relief. Plaintiff has appealed, claiming there were genuine issues of material facts to be tried and that the court erred in disposing of the litigation under the rule.

The general historical facts pertaining to the matter are not seriously disputed, and without here passing upon or approving the form in which a part of the information was presented the record discloses that in the year 1966 there was some activity by an organization identified as the Laramie Downtown Redevelopment Corporation to have the city create an urban renewal project out of the downtown area to include, among other things, the reconditioning or reconstruction of the streets. For some reason not disclosed by the record, the undertaking was never brought to fruition. In early July 1967, however, the corporation presented a petition signed by certain interested property owners to the city council requesting that it create a downtown improvement district out of the area under consideration, utilizing urban renewal funds if deemed advisable. While the record is not entirely clear, it appears that J. T. Banner & Associates was thereafter employed to prepare preliminary plans and specifications for such a district with boundaries substantially conforming to those requested, and on March 4, 1969, the city council on its own initiative adopted the necessary resolution of intention to form such a district-identified as Local Improvement District No. 11-and on May 20, 1969, passed an ordinance creating the district. Subsequently the ordinance was invalidated by a decree of the district court. Following this the city council decided to reconsider the matter of the improvements to be made and other related matters as a basis for the creation of another local improvement district of substantially the same area contained in District No. 11. Toward that end an advisory committee consisting of some eight members was appointed to recommend changes and modifications in the previous plan, which was done, and there then followed the adoption of those recommendations by the city council and the enactment of the ordinance creating Local Improvement District No 12. In this connection we would point out that the ordinance creating District No. 11 is not contained in the record and thus no comparison of significant changes in the provisions of that ordinance and the ordinance creating District No. 12 can be made. We gather from the affidavits, however, that the principal change-exclusive of the State highway portion-was the reduction in the widening of the streets in most instances from 60 feet, as initially proposed, to a uniform width of 56 feet, which would involve increases in width varying from a few inches to as much as four feet and the elimination of 'one or two blocks' from the boundaries fixed for District No. 11.

Without going into too much detail at this time, the general purpose of creating District No. 12, as stated in the ordinance, was to make 'certain street and alley improvements, consisting of changing roadway widths, paving, curb and gutter, filling sidewalk basements, sidewalks, storm sewer changes, street lights, traffic signals and fire alarm system, on the streets, alleys and intersections herein designated. The total estimated cost of the project was in the sum of $1,140,236 of which $887,657 was to be assessed against the owners of property within the district and $252,379 was to be paid from other city funds and the Wyoming Highway Department. The lots contained in some 21 of the described city blocks included within the district were, under the statutory method selected by the city council for assessment of special benefits, to be assessed in amounts ranging from $2,243 to $4,563 per lot, depending upon the size and location of the lots.

Turning now to plaintiff's complaint, it is most prolix and voices many grievances against the city council, its members, employees, and advisors as to the method and manner in which the proceedings leading up to the adoption of the ordinance were carried on. In our view a large number of the charges made are untenable under principles heretofore laid down by this court in several cases dealing at length with the law pertaining to local improvement districts-none of which incidentally are even mentioned in plaintiff's brief or argument-and for such reason we shall not undertake to run the 'gamut,' so to speak, of the complaint but confine our consideration to three claims which we think merit consideration.

Of those three the most critical and difficults is the claim pertaining to the proposed improvements of the streets. With respect to this the ordinance provides:

'The paving improvements in the roadways and intersections listed above in Section 3 shall consist of removing existing pavement and concrete or gravel base, excavation, building up and compacting a subbase and base, shaping, treatment thereof with an asphaltic material, and construction thereon of a hotplant bituminous surface from two to two and one-half inches thick covered with an asphalt and rock aggregate seal coat. The base grading and paving will be to the roadway face of the concrete gutter. The preparation of final plans and specifications shall include a determination as to the economic and engineering feasibility of salvaging existing base. * * *'

Concerning the proposal, plaintiff in her complaint alleges:

'* * * Said ordinance provides that all streets within said Improvement District shall be torn out and replaced in order that the streets may be widened or narrowed a few inches and thereby be of a uniform width. That most, if not all, of said streets have a good base and no reasonable purpose is served by removing and replacing said streets. That said ordinance requiring removal and replacement of said streets at the owners' expense to change the width a few inches so that all the streets will be uniform is arbitrary, capricious and an abuse of discretion. * * *'

As noted above, defendants did not respond to such claim by answer but chose to challenge it by motion for summary judgment. Upon review and analysis of the affidavits and other papers submitted by the defendants in support of the motion and the affidavits and other papers submitted by plaintiff in resistance thereto it appears that the frontal attack made by plaintiff on this phase of the case was in substance narrowed down to whether or not the city council was arbitrary or capricious in eventually determining that the salvaging of the existing concrete base of the paving in most of the streets involved was uneconomical and lacked 'engineering feasibility.'

In connection with the issue so tendered we have always adhered to the view that under the statutes pertaining to the creating of local improvement districts the cities and towns have been granted plenary powers in fixing the boundaries of such districts and the nature and extent of the improvements to be made. We have also said that by so doing the cities are exercising a legislative power which 'rests in the legislative discretion of the city council,' Marion v. City of Lander, Wyo., 394 P.2d 910, certiorari denied 380 U.S. 925, 85 S.Ct. 929, 13 L.Ed.2d 810, rehearing denied 380 U.S. 989, 85 S.Ct. 1352, 14 L.Ed.2d 283. Nevertheless, we have also pointed out that the courts will interfere if the city council exceeds its powers or exercises its discretion in a fraudulent, arbitrary or capricious manner,394 P.2d at 916. See also 13 McQuillin, Municipal Corporations, § 37.25, p. 93, and § 37.90, p. 319 (3d Ed.).

Under that concept it appears that plaintiff states a claim on the phase of the case pertaining to the salvaging of the concrete base and defendants, although intimating it was untenable as a matter of law, were not content to rely upon that position but chose to challenge the plaintiff's claim on the basis that it did raise a factual issue, and we think properly so, for the reason that it is readily discernible that the issue so tendered is technical and complex and its solution is dependent upon evidence adduced through witnesses having special knowledge and training in such matter.

Consequently we turn to the showing made by the parties at the time the motion for summary judgment came on to be heard to determine whether or not there was a genuine issue of a material fact necessitating a trial. With respect to this, there were several affidavits submitted by both parties but, as indicated, our consideration will largely be confined to the affidavits of the engineers presently...

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    • July 11, 1978 in a summary judgment proceeding has the burden of showing the absence of a genuine issue of material fact. Mealey v. City of Laramie, Wyo., 472 P.2d 787, 792; Kover v. Hufsmith, Wyo., 496 P.2d 908, 910, and Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350, 1352. When there are genuine i......
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