Miller v. City of Tacoma

Decision Date01 February 1963
Docket NumberNo. 35982,35982
Citation378 P.2d 464,61 Wn.2d 374
CourtWashington Supreme Court
PartiesVictor J. MILLER, Appellant, v. CITY OF TACOMA, a municipal corporation, Respondent.

Comfort, Dolack & Hansler, Robert A. Comfort, Tacoma, for appellant.

Marshall McCormick, City Atty., Ronald E. Thompson, robert R. Hamilton, Thomas C. Lowry, Tacoma, for respondent.

WEAVER, Judge.

Plaintiff, a resident and taxpayer of Tacoma, Washington, is the owner of real property 'improved and enhanced with a valuable house which is a good, sound, sanitary, modern and well-kept building.' The house is within the boundaries of the Center Street Urban Renewal Project. He initiated this action on behalf of himself, and others similarly situated, for declaratory judgment (RCW 7.24) to challenge the constitutionality of RCW 35.81 (Laws of 1957, chapter 42, as amended by Laws of 1959, chapter 79), known as the 'Urban Renewal Law,' RCW 35.81.910. Plaintiff sought injunctive relief, enjoining the city of Tacoma from taking action under the questioned statutes. The attorney general of the state was served with process, as required by RCW 7.24.110.

Both parties moved for summary judgment. The trial court, having found the land area in question '* * * constitutes a menace, to the public health, safety, welfare, and morals in its present condition and use * * *,' held the statutes constitutional; hence, defendant's motion for summary judgment was granted.

Plaintiff appeals from a judgment dismissing his action with prejudice.

There emerges, after a survey of the many decisions in this filed of law, a general statutory scheme that divides itself into three categories: first, statutes providing for slum clearance and rehabilitation; second, statutes for the elimination and renewal of 'blighted areas' in municipalities of the state; and third, statutes for the establishment of industrial development districts and public acquisition of 'marginal lands' for that purpose. The statutes of each category have characteristics and attributes common to the others.

The questioned statutes applicable to the instant case are really a combination of the first two categories--slum clearance and urban renewal; their constitutionality is a question of first impression in this jurisdiction.

The unconstitutionality of the statutes in the third category--the establishment of industrial development districts to '* * * devote it [land] to what it considers a higher and better economic use * * *'--was, after two en banc arguments to this court, exhaustively researched, discussed, and established in Hogue v. Port of Seattle, 54 Wash.2d 799, 341 P.2d 171 (1959).

Our decision in the Hogue case expressly distinguishes the statutes then before the court from those of the instant case. We said:

'These lands are not being acquired to eliminate a slum or blighted area, or to destroy conditions that breed crime or disease, or to remove buildings that are dilapidated and dangerous to the occupants and the public; nor are they even being acquired to cure any of the ten conditions which purportedly cause them to be marginal lands. (See section 3 of the act.) The only 'cure' suggested in the 1955 act is permanently deprive the landowner of his land because he has a flaw in his title, or his lot boundaries are not rectangular, or because his land has some other alleged defect described in § 3. 'The evidence conclusively shows that the Port's real purpose is to acquire these lands (with the proceeds of the two-mill levy) in order to provide potential industrial sites for future use by persons, firms or corporations engaged in business for proft who may desire to establish factories, warehouses, machine shops or other industrial enterprises in the area.

'Thus, the basis for acquiring this property by eminent domain really rests upon the theory that the Port can condemn this fully developed agricultural and residential land because the Port can devote it to what it considers a higher and better economic use (to sell it as industrial sites). [pp. 826-827, 341 P.2d p. 187]

* * *

* * *

'* * * Our examination of resolution No. 1814 convinces us that its primary purpose is industrial development, which is a private purpose.' (p. 834, 341 P.2d p. 191)

The Congrees of the United States has enacted legislation authorizing the Housing and Home Finance Administration to make grants of capital to cities for renewal or redevelopment of slum or blighted areas. 1

The federal government may contribute two-thirds of the cost of the project; the balance of the cost must be paid from local funds. 42 U.S.C. §§ 1452(a), 1453(a). Cities in Washington were ineligible to participate in the program until Laws of 1957, chapter 42 (RCW 35.81.010-35.81.910) were enacted.

The necessity and purpose of the Urban Renewal Law are set forth in § 2 of the act (RCW 35.81.020), as follows:

'It is hereby found and declared that blighted areas which constitute a serious and growing menace, injurious to the public health, safety, morals and welfare of the residents of the state exist in municipalities of the state; that the existence of such areas contributes substantially and increasingly to the spread of disease and crime and depreciation of property values, constitutes an economic and social liability, substantially impairs or arrests the sound growth of municipalities, retards the provision of housing accommodations, aggravates traffic problems and substantially impairs or arrests the elimination of traffic hazards and the improvement of traffic facilities; and that the prevention and elimination of such areas is a matter of state policy and state concern in order that the state and its municipalities shall not continue to be endangered by areas which are focal centers of disease, promote juvenile delinquency, are conducive to fires, are difficult to police and to provide police protection for, and, while contributing little to the tax income of the state and its municipalities, consume an excessive proportion of its revenues because of the extra services required for police, fire, accident, hospitalization and other forms of public protection, services, and facilities.

'It is further found and declared that certain of such areas, or portions thereof, may require acquisition, clearance, and disposition subject to use restrictions, as provided in this chapter, since the prevailing condition of decay may make impracticable the reclamation of the area by rehabilitation; that other areas or portions thereof may, through the means provided in this chapter be susceptible of rehabilitation in such a manner that the conditions and evils hereinbefore enumerated may be eliminated, remedied or prevented; and that to the extent feasible salvable blighted areas should be rehabilitated through voluntary action and the regulatory process.

'It is further found and declared that the powers conferred by this chapter are for public uses and purposes for which public money may be expended and the power of eminent domain exercised; and that the necessity in the public interest for the provisions herein enacted is hereby declared as a matter of legislative determination.'

In general, the Urban Renewal Act empowers cities to determine the existence of blighted areas within their environs; to acquire lands and structures in a blighted area by purchase (RCW 35.81.070) or condemnation (RCW 35.81.080); and, after acquisition, to hold, improve, clear, or prepare the property for redevelopment.

In addition, RCW 35.81.090 provides:

'A municipality may sell, lease, or otherwise transfer real property or any interest therein acquired by it for an urban renewal project, in an urban renewal area for residential, recreational, commercial, industrial, or other uses or for public use, and may enter into contracts with respect thereto, or may retain such property or interest only for parks and recreation, education, public utilities, public transportation, public safety, health, highways, streets, and alleys, administrative buildings, or civic centers, in accordance with the urban renewal project plan, subject to such covenants, conditions, and restrictions, including covenants running with the land, as it may deem to be necessary or desirable to assist in preventing the development or spread of blighted areas or otherwise to carry out the purposes of this chapter: * * *.'

A 'blighted area' is defined in RCW 35.81.010(2) as follows:

"Blighted area' shall mean an area which, by reason of the substantial physical dilapidation, deterioration, defective construction, material, and arrangement and/or age or obsolescence of buildings or improvements, whether residential or nonresidential, inadequate provision for ventilation, light, proper sanitary facilities, or open spaces as determined by competent appraisers on the basis of an examination of the building standards of the municipality; inappropriate or mixed uses of land or buildings; high density of population and overcrowding; defective or inadequate street layout; faulty lot layout in relation to size, adequacy, accessibility or usefulness; excessive land coverage; insanitary or unsafe conditions; deterioration of site; diversity of ownership; tax or special assessment delinquency exceeding the fair value of the land; defective or unusual conditions of title; improper subdivision or obsolete platting; or the existence of conditions which endanger life or property by fire or other causes, or any combination of such factors, is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency and crime; substantially impairs or arrests the soung growth of the city or its environs, retards the provision of housing accommodations or constitutes an economic or social liability, and/or is detrimental, or constitutes a menace, to the public health, safety, welfare, and morals in its present condition and use.'

Since the parties have stipulated that the ...

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