River Park Square, LLC v. Miggins, 69769-8.

• Decision Date: 15 February 2001
• Docket Number: No. 69769-8.,69769-8.
• Citation: 143 Wash.2d 68,17 P.3d 1178
• Court: Washington Supreme Court
• Parties: RIVER PARK SQUARE, L.L.C.; R.P.S. II, L.L.C., Washington Limited Liability Companies; and Citizens Realty Company, a Washington corporation, Respondents, v. Henry MIGGINS, City Manager and James C. Sloane, City Attorney, Appellants, Stephen K. Eugster, Additional Appellant.

17 P.3d 1178

143 Wash.2d 68

RIVER PARK SQUARE, L.L.C.; R.P.S. II, L.L.C., Washington Limited Liability Companies; and Citizens Realty Company, a Washington corporation, Respondents, v. Henry MIGGINS, City Manager and James C. Sloane, City Attorney, Appellants, Stephen K. Eugster, Additional Appellant.

No. 69769-8.

Supreme Court of Washington, En Banc.

Argued December 6, 2000.

Decided February 15, 2001.

Milton Rowland, Spokane, Hendricks & Lewis, Oscar Yale Lewis, Randolph W. Urmston, Seattle, Kevin Walsh Crean, Seattle, Eugster, Haskell, Stephen Kerr Eugster, Spokane, for appellants.

Witherspoon, Kelley, Davenport & Toole, Leslie Richard Weatherhead, Robert Scott Magnuson, Christopher G. Varallo, Spokane, Curt Roy Hineline, Gary Edward Hood, Seattle, for respondents.

GUY, J.¹

This is a mandamus action initiated by River Park Square, L.L.C, R.P.S. II, L.L.C., and Citizens Realty Company (Developers) against Henry Miggins, the Spokane City Manager (City Manager), and James C. Sloane, the Spokane City Attorney (City Attorney), to compel the City Manager and City Attorney to loan funds from the city's parking meter revenue fund to cover the ground lease payments and operating expenses that the Spokane Public Development Authority (PDA) has insufficient parking revenue to pay. We hold that no duty exists for the City Manager and City Attorney to pay out funds absent an order from the Spokane City Council (Council) to do so. In addition to this issue, we are being asked to rule on three motions for consideration of additional evidence. We find it unnecessary to consider the additional evidence in making the determination in this case and therefore deny the motions. The court is also being asked to determine whether it was proper for the trial court to deny Stephen Eugster's motion to intervene and motion for change of judge in this matter. We find that it was proper for the trial court to deny his motions.

FACTS

In 1995, the Developers approached the City of Spokane (City) and requested assistance to renovate and expand a parking garage, then a part of the commercial retail business area in downtown Spokane identified as River Park Square. As inducement for such assistance, River Park Square was to be improved and expanded with the view of maintaining significant retail business in the central area of the city. As part of the ultimate agreement, a private, nonprofit foundation was created to purchase the garage. The purchase was financed through the issuance of tax-exempt bonds authorized by the City. The bonds are to be repaid from garage revenues and upon full payment on the bonds, the garage will be gifted to the City. Various leases were entered into as part of the project. The lease agreements are as follows: the nonprofit foundation leased the garage to the PDA, the Developer leased the land upon which the garage is built to the nonprofit foundation, and the nonprofit foundation assigned the lease to the PDA.

On January 27, 1997, the Council enacted Ordinance C31823, which outlines the lease agreements to be entered into, creates the parking meter revenue fund out of which ground lease payments and operating expenses that the PDA is unable to pay are to be covered, delegates authority to the City Manager, City Attorney, and bond counsel, Perkins Coie, to carry out the transactions contemplated by the ordinance, and outlines an emergency clause. The ordinance was timely challenged by the citizens group CLEAN on the basis that a plan to provide public financing for the renovation and expansion of a privately owned parking garage violated statutory and constitutional requirements. CLEAN v. City of Spokane, 133 Wash.2d 455, 947 P.2d 1169 (1997). We held that the ordinance was valid since the financing plan and the ordinance under which it was approved satisfied statutory and constitutional requirements. Id.

The role assumed by the City pursuant to the ordinance was to make a limited guaranty of funds for the parking garage that the City would ultimately own. Before passing the ordinance, the Council arranged a feasibility study conducted by Walker Parking Consultants to make projections of the expected financial performance of the garage. Currently major retailers have remained in the downtown area, which was one of the reasons to go forward with the project originally. However, the garage has not performed as anticipated. At the present time, revenues from the parking garage are insufficient to cover the ground lease payments and operating expenses.

Due to the revenue deficiencies, the PDA requested a loan be made from the parking meter revenue fund. The City Manager and City Attorney did not direct a loan but asked the Council to approve a loan. In a 3-4 vote, the Council refused to approve a loan. On May 9, 2000, the Developers applied for a writ of mandamus to compel the City Manager and City Attorney to issue the loan. The PDA was not a party to this action.

On May 24, 2000, the superior court conducted a show cause hearing. Neither party sought discovery nor requested a trial. Following the hearing, Judge Donohue granted the alternative writ of mandamus and ordered the City Manager and City Attorney to issue the loan. The trial court reasoned that Ordinance C31823 mandates that the City Manager and City Attorney issue a loan when revenues to pay the ground lease payment and operating expenses are deficient, and there is no plain, speedy, and adequate remedy in the ordinary course of law.

The City Manager and City Attorney filed a notice of appeal with Division Three of the Court of Appeals on May 25, 2000, and on the following day filed a notice of supersession of the writ of mandamus and order without bond. On June 9, 2000, a statement of grounds for direct review was filed with this court. The Developers objected to the May 25th notice of supersession of the writ of mandamus. On June 12, 2000, the superior court granted the objection and ordered the City Manager and City Attorney to comply with the writ or to obtain a stay from the Court of Appeals. A notice of appeal to this court was filed on June 13, 2000. On June 22, the City Manager and City Attorney filed a motion for stay of enforcement of the mandamus and order. The City Manager and City Attorney did not comply with the writ. A compliance hearing was held on June 27, 2000, and the superior court again found that there had not been compliance. This court granted direct review on July 12, 2000. At that same time we conditionally granted the stay, but lifted the stay on August 3, 2000 and remanded the matter to the trial court for further proceedings. When this court lifted the stay, it also expanded the jurisdiction of the superior court to grant the City Manager and City Attorney a discretionary stay under RAP 8.1(b)(3). On September 6, 2000, the trial court granted a conditional stay. We are now asked to determine whether issuance of the writ of mandamus was proper.

ISSUES

(1) Does Ordinance C31823 create a duty for the City Manager and City Attorney to make the loan in question and should a writ of mandamus be issued to compel them to make the loan?

(2) Is the additional evidence necessary to make a determination of the issue in this case?

(3) Should Stephen Eugster's motion to intervene and motion for change of judge have been granted?

DISCUSSION

I

The City Manager and City Attorney argue that issuance of the writ was in error because they do not have the duty or authority to act as mandated. We agree, and find that the ordinance does not mandate that the City Manager and City Attorney make the loan absent an order by the Council to make such an allocation. Because the Council has not approved an order for the loan, the City Manager and City Attorney cannot be compelled to pay out the loan. Therefore, the writ was issued in error and should be reversed.

The dispositive issue is whether Ordinance C31823 is an appropriations ordinance mandating that the City Manager and City Attorney make loans to the PDA when parking revenues are insufficient to cover ground lease payments and operating expenses. The Spokane City Charter states the following:

Section 12. Form and Manner of Legislation.

All legislation and appropriations of money shall be by ordinance; save where there is a special fund created for a particular purpose, payments from such fund shall be made on order of the city council. Every ordinance and resolution shall be in writing and filed with the clerk before a vote is taken thereon, and upon every such vote the ayes and nays shall be called and recorded. (Emphasis added.)

Section 13. Subject of Ordinance.

The subject of every ordinance shall be set out clearly in the title thereof, and no ordinance except one making appropriations shall contain more than one subject. Ordinances making appropriations shall be confined to the subject of appropriations.

Ordinance C31823 outlines what lease agreements are to be made between the various parties involved in the River Park Square project. The ordinance also creates a parking meter revenue fund to provide funds to cover deficiencies in ground lease payments and operating expenses of the parking garage. The relevant portions of Ordinance C31823² state:

Section 8. The Parking Meter Revenue Fund.

There is hereby created and shall be maintained in the office of the Treasurer a fund separate and distinct from all other funds and accounts of the City, designated the "Parking Meter Revenue Fund" (the "Parking Meter Revenue Fund"). All Parking Meter Revenue shall be deposited into the Parking Meter Revenue Fund upon receipt. Money shall be withdrawn from the Parking Meter Revenue Fund to maintain public streets and roadways within the City and for the purposes set forth in Section 9 of this Ordinance. The City shall maintain the number of parking meters at approximately the number that exists on the date of this Ordinance and shall charge parking meter rates that are market

...