Robinson v. City of Seattle

Decision Date18 June 1992
CourtWashington Supreme Court

William Justen and Jane Doe Justen, husband and wife; Beatrice Ryan and John Doe Ryan, wife and husband; Holly Miller and John Gayman, wife and husband; and Ovid Thompson, a single person, Defendants.

No. 57038-8.May 14, 1992.Reconsideration Denied June 18, 1992.

Richard B. Sanders, Bellevue, for appellants.

Mark H. Sidran, Seattle City Atty., Sandra M. Watson, Asst. Seattle City Atty., Seattle, for respondent.

Ronald A. Zumbrun, Edward J. Connor, Jr., John M. Groen, Sacramento, Cal., Ben J. Gantt, Jr., Seattle, amicus curiae for appellants on behalf of Pacific Legal Foundation.

Richard L. Andrews, Bellevue City Atty., Richard Gidley, Deputy Bellevue City Atty., Bellevue, amicus curiae on behalf of Washington State Ass'n of Mun. Attys.


GUY, Justice.

Plaintiffs appeal from a dismissal of their class action. Roy and Kathleen Robinson and that class of persons similarly situated seek reversal of a trial court's rulings which dismissed their civil rights actions against the City of Seattle and individual officials, applied a 3-year statute of limitation to their claims for refunds of payments they made under the City of Seattle's Housing Preservation Ordinance and denied their request for reasonable attorney fees. The City of Seattle (City) cross appeals, arguing the trial court erred in awarding the partial refund. We will refer to the class in this action as the Robinsons.


The Robinsons' appeal comes to this court following two decisions of this court which held invalid both sections of the City's Housing Preservation Ordinance (HPO).1 By the time of this court's decisions upholding invalidation of the HPO, the Robinsons had paid substantial sums to the City under the ordinance.

The Housing Preservation Ordinance, former SMC 22.210, was originally enacted in 1980. Its stated purpose was to mitigate the loss of low income housing in the city caused by demolition for development and to reduce the hardships experienced by displaced tenants. Former SMC 22.210.020. With some exceptions, the original version of the ordinance (HPO-1) required that before a change of use or demolition of housing units could occur, a housing demolition license fee had to be paid to the City in an amount pro rated to the number of units to be demolished, with the fee to be used for building and rehabilitation of low income housing. In its provisions for the protection of low income tenants the ordinance additionally required that tenants be given a 120-day notice of an intended demolition, and that low income tenants be either relocated or, at the option of the landlord, paid up to $1,000 per family in relocation assistance.

Approximately 2 years after the passage of the City's HPO-1, the State Legislature amended RCW 82.02.020 to provide in part that [n]o county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on the construction or reconstruction of residential buildings ... or on the development, subdivision, classification, or reclassification of land.” See Laws of 1982, 1st Ex.Sess., ch. 49, § 5. Later that same year this court, without reference to RCW 82.02.020, invalidated two county ordinances which imposed fees on new residential developments as offsets to increased service costs and for the construction of park land. Hillis Homes, Inc. v. Snohomish Cy., 97 Wash.2d 804, 650 P.2d 193 (1982). This court in Hillis Homes held the development fees were invalid taxes (because their primary purpose was to raise money since the fees were fiscal and not regulatory), and thus held the ordinances requiring the fees invalid as there was no express authority permitting such taxes. After the Hillis Homes decision, the Seattle City Attorney determined that neither Hillis Homes nor RCW 82.02.020 invalidated HPO-1. The City Attorney reasoned that HPO-1 was a regulatory enactment and a demolition fee, not a development fee, and advised the Department of Construction and Land Use (“the Department”) to continue enforcement.

In October 1983, a King County Superior Court granted San Telmo Associates a declaratory judgment, ruling the HPO-1 housing replacement fee provision an invalid tax prohibited by RCW 82.02.020, and awarded San Telmo, its heirs and assigns an injunction against the City's enforcement of HPO-1. The City Attorney advised the Department that the Superior Court ruling was erroneous. The City Attorney also indicated that because it was a limited ruling, applying only to San Telmo, the City would not appeal as it planned to redraft HPO-1. The City Attorney advised the Department that HPO-1 was enforceable against non-parties to the action.2 The City did not appeal, complied with the injunction vis-a-vis San Telmo Associates while continuing to enforce the ordinance against all others similarly situated, and later began redrafting the HPO.

A new draft of HPO-1 was completed by a task force in Spring 1984. The new draft was presented to the City Council in September 1984. In July 1985, the City repealed HPO-1 and enacted a new version of the HPO, which we shall call HPO-2. HPO-2 had the same purpose as HPO-1 but did not require payments to the City. Instead, it required owners to replace a percentage of the housing demolished, with the option that a landowner could make a payment to the City rather than build replacement housing. Significantly, HPO-2 added an administrative relief provision which exempted owners from the replacement housing requirements if compliance would deprive the owners of all economically viable use of the property. HPO-2 still included, as did HPO-1, tenant notice and relocation assistance provisions.

After the City enacted HPO-2, San Telmo Associates again filed suit challenging the housing replacement provisions. In July 1986, the King County Superior Court declared the housing replacement provision an unauthorized tax or fee, and granted an injunction. The City Attorney concluded the Superior Court's decision was in error, would be reversed on appeal, and advised the Department the City was appealing the ruling to the Supreme Court. The City was also advised to continue enforcement against nonparties to San Telmo's action, based on the reasoning that the Superior Court ruling affected only parties to the suit. The Department continued enforcement except against San Telmo.

In April 1987, this court held the housing replacement provisions of HPO-2 invalid as an unauthorized tax under RCW 82.02.020. San Telmo Assocs. v. Seattle, 108 Wash.2d 20, 735 P.2d 673 (1987). This court noted that HPO-2 differed materially from HPO-1:

There is no indication that the City attempted to adopt the second ordinance merely to avoid the trial court order invalidating the first ordinance; rather, the second ordinance was specifically enacted with changes designed to cure the defects in the original ordinance.

San Telmo, at 23, 735 P.2d 673. The San Telmo decision did not reach any constitutional claims or federal statutory claims and did not address the validity of the tenant relocation assistance provisions of HPO-2.

After this Court's San Telmo decision, the City Attorney advised the Department to stop enforcement of HPO-2's housing replacement provisions. The Department was advised, however, that it could continue enforcement of HPO-2's remaining tenant relocation assistance provisions.

In December 1987, the King County Superior Court held HPO-2's tenant relocation assistance provisions were an unauthorized tax in violation of RCW 82.02.020, as well as a violation of the Fifth and Fourteenth Amendments, and of article 1, sections 3 and 16 of the Washington Constitution. The court granted R/L Associates an injunction against enforcement of the tenant relocation assistance provisions. The City appealed.

In the interim, the City Attorney informed the Department of the Superior Court decision granting an injunction to R/L Associates, its heirs and assigns. The Department was advised that since the order was restricted to the parties, the Department must stop enforcement vis-a-vis R/L Associates, but could continue enforcement against nonparties. The City issued a news release stating it would continue enforcement of the tenant relocation assistance provisions of HPO-2 against all but R/L Associates.

In March 1988, R/L Associates obtained a contempt judgment against the City, Holly Miller (the director of the Department), and HPO administrator Ovid Thompson for continued enforcement of the tenant relocation assistance provisions of HPO-2, as it constituted a failure to comply with the permanent injunction awarded R/L Associates. The Department then stopped enforcement of the relocation assistance provisions of HPO-2.

In the City's appeal of the R/L Associates decision, this court held that the tenant relocation assistance provisions of HPO-2 violated RCW 82.02.020, but did not hold HPO-2 to be a tax. R/L Assocs., Inc., v. Seattle, 113 Wash.2d 402, 780 P.2d 838 (1989). For the City's noncompliance with the Superior Court injunction against continued enforcement of invalidated HPO provisions, this court upheld the contempt judgment against the City. This court declined to reach the taking issue raised by the plaintiffs in R/L Assocs., and reversed the trial court's ruling that enforcement of HPO 2 violated substantive due process, as the plaintiffs had made “no allegation of irrational, or arbitrary or capricious conduct on the part of the City in its denial of [the] demolition license.” R/L Assocs., at 412, 780 P.2d 838.

Procedural History

On May 27, 1988, Roy and Kathleen Robinson, on behalf of themselves and the class of persons who paid demolition license fees or tenant...

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