Mission Springs, Inc. v. City of Spokane

Citation954 P.2d 250,134 Wn.2d 947
Decision Date24 July 1998
Docket NumberNo. 63836-5,63836-5
PartiesMISSION SPRINGS INC., a Washington corporation, and Feature Realty, Inc., a California corporation, appellants, v. The CITY OF SPOKANE; The Spokane City Council; Roger Crum as City Manager of the City of Spokane; Jack Geraghty and Jane Doe Geraghty; Mike Brewer and Jane Doe Brewer; Phyllis Holmes and John Doe Holmes; Joel Crosby; Chris Anderson and Jane Doe Anderson; Bev Numbers and John Doe Numbers; and Orville Barnes and Jane Doe Barnes, Respondents.
CourtUnited States State Supreme Court of Washington
Frank Conklin, Spokane, for Appellants

James C. Sloane, City Attorney, Gregory G. Staeheli, Kain Snow & Staeheli, Meriwether D. Williams, Winston & Cashatt, Patrick J. Dalton, Assistant City Attorney, Milton G. Rowland, Spokane, for Respondents.

SANDERS, Justice.

Mission Springs, Inc. 1 commenced this civil rights action against the City of Spokane and local officials pursuant to RCW 64.40 and 42 U.S.C. sec.1983 for alleged wrongful refusal to process a grading permit. The trial

court dismissed all claims on summary judgment; however, on direct review, we reverse and remand. 2

I. The Issue

The ultimate issue is whether a municipality may withhold a ministerial land use permit for reasons extraneous to the satisfaction of lawful ordinance and/or statutory criteria. We hold it may not and recognize RCW 64.40 and 42 U.S.C. sec.1983 provide a remedy.

II. Facts

Those facts important to the resolution of the issue at hand are not seriously disputed.

On August 31, 1992 the Spokane City Council adopted Ordinance No. C-30529 approving Mission Springs' application for a planned unit development (PUD) comprised of 790 apartment units located within approximately 33 3 separate buildings. This final approval followed submittals by the developer setting forth the nature of the proposed development in sufficient detail to enable the city council to affirmatively determine pursuant to RCW 58.17.110 that the development made adequate provision for "the public health, safety, and general welfare and for such open spaces, drainage ways, streets or roads, alleys, other public ways, transit stops, potable water supplies ....", etc. RCW 58.17.110(2)(a). The record shows a public hearing was held on November 5, 1991, Clerk's Papers (CP) at 202, wherein evidence was taken on these matters. Thereafter the hearing examiner concluded on November 25, 1991 The record also demonstrates it was well known to the developer and local government officials the addition of a 790-unit apartment complex at this location would necessarily cause a predictable increase in traffic upon adjacent roads and highways subsequent to ultimate construction and occupancy. That this factor was fully considered by all concerned there can be no doubt as the developer submitted a traffic study detailing the likely traffic increase as a result of the apartment build-out with specific reference to the likely routes of travel. See CP at 245, 304 (describing 1991 traffic impact study). We also note that it was known, or should have been known, to all concerned as of the date of final approval on August 31, 1992, the developer was statutorily vested with the legal right to build out the planned improvements identified in the PUD for a period of five years under the ordinances, statutes, and regulations in effect at the time of the August 1992 approval "unless the legislative body finds that a change in conditions creates a serious threat to the public health or safety in the subdivision." RCW 58.17.170. No such finding, however, was ever made.

that the PUD application should be granted, subject to various conditions. CP at 202.

Mission Springs obtained grading and building permits for the project by early 1993 but, for reasons of its own, did not utilize them prior to their expiration in May 1994. However, in October 1994, Mission Springs submitted a new application for a grading permit in identical form to the old one containing all components 4 required by Spokane Municipal Code (SMC)4.03.020 (repealed and superseded by art. 8, ch. 11.02, ord. C-31607(1996)). This code applies not only to grading permits but building permits as well as several other types of permits.

On June 22, 1995 5 Mr. Irv Reed, Spokane's building officer, briefed the Spokane City Council:

We are ready to issue the grading permit. The legal department has reviewed the process. We have completely gone through it and we're ready to issue the grading permit.[ 6

CP at 75.

Notwithstanding, the City withheld the grading permit several months. 7 The circumstances pertaining to refusal to issue this permit are largely detailed in the transcript of the June 22, 1995 council meeting which followed Mr. Reed's introductory remarks and comprise the gravamen of Mission Springs' complaint.

It appears Mission Springs was given no notice that its project would even be the subject of discussion at the June 22 meeting, thus it had no reason to attend and did not attend. CP at 74. However, project opponents had apparently been notified by the City Council that such a meeting would take place as Mayor Geraghty opened the meeting by stating "I know some people are here to hear what the current status of the Mission Springs thing is." CP at 75. The Mayor clarified that only "phase one" of the project was ready to proceed and that phase one involved only 193 units divided between 8 buildings housing 24 units each. CP at 76. It was also established from the outset that the Department of Transportation and the developer were in agreement that this phase should proceed. As City Council Member Holmes stated, "And it's between them and DOT, it has nothing to do with us." CP at 78.

Building Official Bob Eugene reported that although [Council Member Phyllis] Holmes: If we were to direct Bob [Eugene] not to issue permits until the tunnels were improved, what would happen?

                there was a potential deficiency in 16-foot roadway tunnels under nearby railroad rights-of-way, "the tunnels are adequate to service the traffic that will be generated from the project." 8  CP at 81.  The record also references a statement by City Council Member Anderson that a neighborhood opposition group had been formed which had hired an attorney to (presumably) fight the project.  CP at 85.  Various aspects of the project were discussed at which point the Mayor stated, "The question was whether council has any action that it can do at this point."   CP at 89.  From there the following dialogue ensued

[City Attorney James] Sloane: What would happen is that it would be the genesis of a cause of action by the developer against the city for unlawfully interfering with the issuance of a building permit and that is essentially the same basis that we're presently in federal court on, a civil rights violation. The other issue is that it's a charter violation.

A person: It's a charter violation?

[City Attorney] Sloane: It's a charter violation.

A person: How so?

[City Attorney] Sloane: The council has no administrative authority by the terms of the city charter. The council acts through ordinances and set[s] policy. The city administrative staff is charged with following ordinances. The property owner is entitled to a right to rely on the vested right he has at the time he files his building application, to have it considered under the existing legislative scheme and an effort to change that scheme is a violation of due process.


[Council Member] Holmes: Well, I'm going to put a motion on the table and see where we go with this. I'm going to move [Council Member] Anderson: I'll second that.

that we request a current staff report on the traffic impact on the Thorpe tunnels of the additional units based on current traffic use. If there are any studies that we have would be old [sic] and we delay issuance of that permit until that report has been brought forward to the county.

Mayor Geraghty: We have a motion seconded. I'm inclined to support this, but I want to know what the downside is.

[City Attorney] Sloane: The downside, looking at the traffic issue separately for a moment, if the rules are that when a property owner comes forward with a request for a building permit, he's entitled to have his project considered under the rules that are in place at the time he filed his application. When a project has progressed to the extent that the Thorpe Road project has proceeded, most of those issues, if not all of those issues, have been resolved. The one that we have identified here is the wetlands, the four subsequent phases. Any interference with the issuance of a building permit when a property owner is entitled to that building permit gives rise to a claim under state law and under federal law. It is essentially the same claim that was made by Mr. Ronald with regard to the Ronald property. At this point the issue of traffic I believe has been resolved and Mr. Ramsey and Mr. Eugene are here and they can speak to the specifics of it, but I believe that's the case with regard to the Mission Springs project.

[Council Member] Anderson: You know, I guess I would add that, you know, with all due respect I think we owe an obligation to the other members of the community who have serious concerns about the traffic problems up in that area.... I guess too my feeling is, and I think this is a great motion. We have the opportunity to put a stop to this and let's just see what happens. Let's see how confident they are. If they bring a suit, we can always turnaround and issue the permit, that's an option still available to us.

Mayor Geraghty: At the moment did your motion cover grading permit or the building permit?

[Council Member] Holmes: Any permits, it did not specify....

CP at 89-94 (emphasis added). The motion carried unanimously. As a direct and proximate result of this city council motion, City Manager Roger Crum and his...

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