Patchell v. City of Puyallup

• Decision Date: 30 April 1984
• Docket Number: No. 5485-0-II,5485-0-II
• Citation: 682 P.2d 913,37 Wn.App. 434
• Court: Washington Court of Appeals
• Parties: James T. PATCHELL and Marla L. Patchell, husband and wife, Respondents and Cross-Appellants, v. CITY OF PUYALLUP, Washington, a municipal corporation, Appellant, Thomas A. Burris and Rose Mary Burris, husband and wife; Chicago Title Insurance Company, a corporation; Francis W. Miller and Kathie Miller, husband and wife; Commonwealth Title Insurance Company, a corporation, Defendants. John A. BINGISSER and Patricia M. Bingisser, husband and wife, D. Alan Weir and Joyce Weir, husband and wife; Helen M. Bingisser Mamic; and Charles R. Burgmeier and Cheryl S. Burgmeier, husband and wife, Petitioners, v. CITY OF PUYALLUP, a municipal corporation, Respondent.

Page 434

37 Wn.App. 434

682 P.2d 913

James T. PATCHELL and Marla L. Patchell, husband and wife, Respondents and Cross-Appellants, v. CITY OF PUYALLUP, Washington, a municipal corporation, Appellant, Thomas A. Burris and Rose Mary Burris, husband and wife;

Chicago Title Insurance Company, a corporation; Francis W.

Miller and Kathie Miller, husband and wife; Commonwealth

Title Insurance Company, a corporation, Defendants.

John A. BINGISSER and Patricia M. Bingisser, husband and

wife, D. Alan Weir and Joyce Weir, husband and wife; Helen

M. Bingisser Mamic; and Charles R. Burgmeier and Cheryl S.

Burgmeier, husband and wife, Petitioners, v. CITY OF PUYALLUP, a municipal corporation, Respondent.

No. 5485-0-II.

Court of Appeals of Washington Division 2.

April 30, 1984.

Review Denied Sept.21, 1984.

Blair B. Burroughs, Seattle, for appellant.

Harold T. Hartinger, Tacoma, for respondents and cross-appellants.

PETRICH, Chief Judge.

Having reconsidered our prior opinion, filed January 14, 1982, as directed by a notation order of the Supreme Court which remanded the case for further consideration in light of Fisher Bros. Corp. v. Des Moines Sewer Dist., 97 Wash.2d 227, 643 P.2d 436 (1982), our prior opinion is withdrawn and the following is substituted.

This appeal deals with the degree of compliance with statutory procedures required to invoke the court's jurisdiction under Art. 4, § 6 to review Local Improvement District assessments and the inherent or equity power of the court to review such assessments because of jurisdictional defects.

The City of Puyallup appeals a judgment setting aside a local improvement assessment against the property of Marla and James T. Patchell. The trial court denied Patchells' statutory appeal because of a tardy filing of a bond and transcript, invoked its inherent or equity jurisdiction and set aside the assessment on the ground that the City's failure to abide with the statutory notice procedures of RCW 35.43.140, 35.43.150, and 35.50.005 deprived the City of its jurisdiction over Patchells' lot.

The City contends the failure to comply with the statutory notice procedure did not deprive the Patchells of a constitutionally guaranteed right to notice and a right to be heard, resulting in a jurisdictional defect of the proceedings, so as to justify exercise of the trial court's inherent jurisdiction to grant relief. On the other hand, the Patchells have assigned error to the trial court's denial of their right to a statutory appeal, claiming they have substantially complied with the statutory directives and substantial rather than strict compliance is all that is required.

The issues presented are:

A. Whether a timely filed notice of appeal to superior court by a property owner seeking statutory judicial review of a local improvement district assessment must be stricken because of a tardy filing of a $200 cost bond and a transcript of city council proceedings.

B. Whether the City's failure to comply with the statutory scheme specifying the manner in which a Local Improvement District may be initiated and its failure to post preliminary assessment estimates which, when filed, determine the date of the lien as between a purchaser and seller, constitute a jurisdictional defect permitting the court, in the exercise of its inherent or equity power, to invalidate an assessment on behalf of a landowner who purchased the property without notice of the City's noncompliance.

We hold that the delayed filing of the bond and transcript of the hearing before the city council did not amount to substantial compliance with the statutory procedures governing judicial review of assessment proceedings and that the plaintiffs were not entitled to statutory judicial review. We also hold that the City's noncompliance with the statutory scheme creating the district and its failure to post preliminary assessments do not amount to a jurisdictional defect and that the trial court was without jurisdiction to invalidate the assessment.

The facts are undisputed. The Patchells now own a corner lot at the intersection of 27th Avenue S.E. and 41st Street S.E. in Puyallup. In January 1978, the City passed a resolution initiating an LID for construction of water mains and asphalt paving in an area which included 27th Avenue S.E. but not 41st Street. At that time the Patchells' lot and two adjoining lots along 27th Avenue were owned by Mr. Edwin C. Woodiwiss. A hearing was held pursuant to the resolution as required by RCW 35.43.140 and 35.43.150, and on February 21, 1978, the LID was created by ordinance. The City did not file with the city treasurer a diagram of the LID and preliminary assessment roll as required by RCW 35.50.005. Shortly thereafter a number of property owners along 41st Street S.E., including Mr. Woodiwiss, petitioned the Puyallup City Counsel for inclusion of their properties within the LID. The terse request did not, however, comply with RCW 34.43.120, which requires certain procedural steps for the filing of a petition to initiate an LID. In July 1978, the City, without prior notice or hearing, adopted an ordinance designed to include 41st Street and other streets within the LID, as requested. Again, no filing was made with the city treasurer under RCW 35.50.005. The public works construction authorized by the LID was begun on 27th Avenue in May 1978, and on 41st Street in September 1978, and was completed in each instance in about 18 months. The effect was that the lot now owned by the Patchells was assessed for LID construction on both of the streets which intersect at its corner.

Mr. Woodiwiss sold his corner lot in May 1978, when work was begun. It passed through the hands of successive purchasers until it was purchased by the Patchells in August 1979, just before the LID construction on 27th Avenue was completed and approximately 8 months before construction was completed on 41st Street. The City published the final assessment roll for the LID in April 1980, and mailed notice to the Patchells and other affected landowners. The Patchells objected to confirmation of the final roll, but the City adopted an ordinance on June 16, 1980, confirming the roll.

The Patchells filed a notice of appeal from the assessment, but they did not simultaneously file an appeal bond with the county clerk as required by RCW 35.44.220, and they failed to file within 10 days a transcript of the administrative record as required by RCW 35.44.230. In response to the City's pretrial motion to dismiss, the trial court found that it had no statutory jurisdiction over Patchells' appeal due to their noncompliance with the statutes, but ruled that it had inherent constitutional jurisdiction to decide the appeal nevertheless. The court proceeded to hold that Patchells were entitled to have the assessments against their lot set aside due to the City's noncompliance with RCW 35.43.140 and .150 (requiring notice of hearing to property owners prior to creation of an LID); and RCW 35.50.005 (the section requiring the municipality to file a diagram and preliminary assessment roll). The issue of whether Patchells' assessment is excessive or disproportionate was not addressed by the trial court and is not before this court.

In our prior opinion we agreed with the trial court's ruling that the court lacked jurisdiction to consider the statutory appeal because the filing of a bond and transcript of the administrative record was untimely under RCW 35.44.220 and .230. We relied on Goetter v. Colville, 82 Wash. 305, 144 P. 30 (1914), and its progeny which held that the jurisdiction of the court to hear appeals was conferred only by statute and strict compliance with the statutory mandate is required. Subsequently, the Supreme Court's decision in Fisher Bros. overruled Goetter.

The Fisher Bros. opinion pointed out that Goetter and its ensuing line of cases had overlooked Const. art. 4, § 6, which states that the "superior court shall have original jurisdiction in all cases ... which involve ... the legality of any ... assessment," and the opinion overruled those cases which held that the statute restricts the court's subject matter jurisdiction. In so doing, the court held that a similar statutory bond requirement at issue was procedural, rather than jurisdictional. The constitutional provision relied on in Fisher Bros. likewise was not cited to us in any of the parties' briefs.

We now must follow Fisher Bros. and hold that the Patchells' failure to comply with RCW Chapter 35.44 was merely a procedural defect. If substantial compliance can be found, the court had the power to hear and determine the case as an appeal under the statute. In re Indian Trail Trunk Sewer System, 35 Wash.App. 212, 666 P.2d 378 (1983).

Here, substantial compliance is said to derive from the following chronology of events:

June 2, 1980--Final LID assessment roll approved.

June 10--Patchells prematurely filed a complaint (Notice of Appeal) in superior court without the required cost bond. (The assessment was not imposed until June 29, the effective date of the ordinance).

June 11--Puyallup was served.

June 16--Ordinance confirming assessment was passed.

June 20--Day for filing transcript under RCW 35.44.230 passed without filing accomplished.

June 29--Ordinance became effective.

July 16--Puyallup made documents available for inspection and agreed to assemble copies of documents material to pending court proceedings.

August 1--Patchells served and filed request for Puyallup to compile transcript of proceedings.

Aug. 7 & 13--Transcript and supplemental transcript given to Patchells.

August 8--Puyallup moves to dismiss for noncompliance with the statutory transcript and bond requirements.

August 13--Patchells file statutory cost bond of $200 64 days late calculated from filing notice of appeal or 45 days late assuming appeal filed on effective date of ordinance.

Aug. 13 & 14--Transcript and supplemental transcript filed 54 days...