Appendix — City of Seattle v. Robinson

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Supreme Court of the Anited States

OCTOBER TERM, 1992

THE CITY OF SEATTLE, WILLIAM JUSTEN and JANE DOE

JUSTEN, BEATRICE RYAN and JOHN DOE RYAN, HOLLY

MILLER and JOHN GAYMAN, and OvID THOMPSON,

Petitioners,

V.

Roy W. and KATHLEEN ROBINSON, individually and as

partners d/b/a COMPUTER SLIDE COMPANY, and that class of

persons and entities similarly situated,

Respondents.

THE CITY OF SEATTLE, HOLLY MILLER and JOHN GAYMAN,

Ovip THOMPSON, DAVID MOSELEY and JANE DOE MOSELEY,

BEATRICE RYAN and JOHN DOE RYAN,

Petitioners,

V.

SINTRA, INC., KEITH H. HAMACK and Patty L. HAMACK,

ARTHUR M. STANLEY and SUSAN S. STANLEY,

Respondents.

Petition for a Writ of Certiorari to the

Supreme Court of the State of Washington

APPENDIX

MARK H. SIDRAN, Louis R. COHEN,

City Attorney Counsel of Record

HUGH R. TOBIN, LAURA B. AHEARN

Assistant City Attorney WILMER, CUTLER & PICKERING

SANDRA M. WATSON, 2445 M. Street, N.W.

Assistant City Attorney Washington, D.C. 20037-1420

1000 Municipal Building (202) 663-6000

600 Fourth Avenue

Seattle, WA 98104

(206) 684-8200

_ ao AR ARERR Sa ABI ere YSNE NAS AE NS wa ne

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

Counsel for Petitioners

TABLE OF CONTENTS

Robinson v. Seattle

Opinion of the Supreme Court of Washington (May

iia IED sniasithioiiploncitunllnhycheetiaacenstnkiahabanitenaibieusdaienkan

Order Consolidating Appeals of the Supreme Court

of Washington (February 4, 1991) ............

Plaintiffs’ Notice of Appeal to State Supreme Court

DEER ee

Defendant’s Notice of Appeal to State Supreme

RS NT, BI seesteanininsctitirnstnnsiantiinineeinne

Final Judgment of the Superior Court of the State

of Washington (February 28, 1990) ...........00...

Order Granting Partial! Summary Judgment Award-

ing Refunds of the Superior Court of the State

of Washington (January 30, 1990) .............

Order Granting Partial Summary Judgment Dis-

missing § 1983 Liability of the Superior Court

of the State of Washington (May 1, 1989) ....

Order Granting Partial Summary Judgment Dis-

missing § 1983 Claims Against Individual

Defendants of the Superior Court of the State

of Washington (March 30, 1989) ............

Order Denying Motion for Reconsideration of the

Supreme Court of the State of Washington

SO Wi SEIU ascitic adslcnienininausdcsiseensbvsoiesenens

Mandate of the Supreme Court of the State of

Washington (June 18, 1992) .......... eee eeeeeeeeeeeee

Sintra v. Seattle

Opinion of the Supreme Court of Washington (May

ik, | IED talictietdpeavicsaidiusnaicaasapuaaeseminmannenensinnilens

Letter Accepting Review by the Supreme Court of

Washington (February 4, 1991) 0...

Notice of Appeal to Washington State Supreme

Court (March 16, 1990) ...........cceeesescccceeeeeseee

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53a

54a

55a

57a

59a

62a

66a

67a

69a

97a

ii

Order Granting Defendants’ Motion for Summary

Judgment of the Superior Court of the State

of Washington (February 28, 1990) ......... agen 100a

Order Denying Motion for Reconsideration of the

Supreme Court of Washington (June 17,

BOD) x .cvsers:ssecevecssssicunepieleiionetaineaannaneneeacseresers 102a

Mandate of the Supreme Court of Washington (June

18, 2OGE) .ncissisensiereisseneeiensemenananests 103a

Trial Court Decisions in Other Cases

Order Granting Motion for Summary Judgment,

Declaratory Judgment and Injunctive Relief of

the Superior Court of the State of Washington

in San Telmo Associates v. City of Seattle, No.

83-2-06176-8 (October 13, 1983) ....... eee 105a

Order Granting Summary Judgment and Declara-

tory and Injunctive Relief of the Superior Court

of the State of Washington in San Telmo As-

sociates v. City of Seattle, No. 85-2-13092-8

CFraky 16, BOR) scccicicccscciseecnnasensetatnnienaeriassss 108a

Order Granting Partial Summary Judgment and

Declaratory and Injunctive Relief of the Su-

perior Court of the State of Washington in R/

L Associates v. City of Seattle, No. 86-2-20459-

S (Phecneed TF, RID. vecsvancauncaicnecbsesienseves llla

Judgment of Contempt of the Superior Court of

the State of Washington in R/L Associates v.

City of Seattle, No. 86-2-20459-8 (March 9,

RUE) cusnercsesecenninenseseane piesa Geena aman aTeDN 1l4a

Ordinances

City of Seattle Ordinance 112342 (July 19, 1985). 116a

City of Seattle Ordinance 109220 (July 24, 1980). 1386a

Seattle Municipal Code § 3.06.050 .......... eee 148a

la

SUPREME COURT OF WASHINGTON

No. 57038-8

ROY W. ROBINSON, ET AL,

Appellants,

v.

THE CITY OF SEATTLE, ET AL,

Respondents.

EN BANC

MAY 14, 1992

Guy, J. — Plaintiffs appeal from a dismissal of their class

action. Roy and Kathleen Robinson and that class of per-

sons similarly situated seek reversal of a trial court's rul-

ings 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.

FActs

Background

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).' 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 Seattle

Municipal Code (SMC) 22.210, was originally enacted in

'RIL Assocs., Inc. v. Seattle, 113 Wn.2d 402, 780 P.2d 838 (1989): San Telmo

Assocs. v. Seattle, 108 Wn.2d 20, 735 P.2d 673 (1987).

2a

1980. Its stated purpose was to mitigate the loss of low

income housing in the city caused by demolition for develop-

ment 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 prorated 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 addition-

ally 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 reconstruc-

tion of residential buildings . . . or on the development,

subdivision, classification, or reclassification of land.” See

Laws of 1982, Ist Ex. Sess., ch. 49, § 5. Later that same

year this court, without reference to RCW 82.02.020, invali-

dated 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 Wn.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 develop-

3a

ment fee, and advised the Department of Construction and

Land Use (the Department) to continue enforcement.

In October 1983, the 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 enforce-

ment of HPO-1. The city attorney advised the Department

that the superior court ruling was erroneous. The city attor-

ney 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 nonparties

to the action.” 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 situ-

ated, 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 Coun-

cil 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 provi-

sion 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 pro-

visions. In July 1986, the King County Superior Court

declared the housing replacement provision an unauth-’

orized tax or fee, and granted an injunction. The city

“We note that the city attorneys involved in this appeal are not the attorneys

who provided the legal advice mentioned in this opinion.

a

4a

attorney concluded the superior court's decision was in

error, would be reversed on appeal, and advised the Depart-

ment 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 par-

ties 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 Wn.2d 20,

735 P.2d 673 (1987). This court noted that HPO-2 differed

matenally from HPO-1:

There is no indication that the City attempted to adopt the

second ordinance merely to avoid the trial court order invali-

dating 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. 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 pro-

visions 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 Kir.g 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 Depart-

ment of the superior court decision granting an injunction

5a

to R/L Associates, its heirs and assigns. The Department

was advised that since the order was restricted to the par-

ties, the Department must stop enforcement vis-a-vis R/L

Associates, but could continue enforcement against nonpar-

ties. The City issued a news release stating it would con-

tinue 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 judg-

ment 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 Wn.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 con-

duct on the part of the City in its denial of [the] demolition

license.” R/L Assocs., at 412.

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 relocation assistance pursuant to

either HPO-1 or HPO-2, filed this action against the City

and four individual employees: William Justen, Beatrice

Ryan, and Holly Miller, all successive directors of the

Department during the time the HPO was effective; and

eerie eile

6a

Ovid Thompson, the official responsible for the administra-

tion of the HPO. The complaint sought compensatory and

punitive damages for enforcement of the tenant relocation

assistance and housing replacement/fee provisions of HPO-1

and HPO-2, claiming the City "maliciously, recklessly and/or

wantonly” violated the constitutional mghts of the Robin-

sons and the class by “willfully” enforcing an unconstitu-

tional ordinance. The class was certified. The individual

defendants moved for summary judgment to dismiss the

claims against them on the basis of qualified immunity. The

Robinsons moved to strike the defendants’ qualified immu-

nity defenses and claimed the City was liable for damages

under 42 U.S.C. § 1983. The City moved to dismiss the

section 1983 claims. On March 30, 1989, the King County

Superior Court granted the individual defendants’ motion to

dismiss the personal liability claims. On May 1, 1989, the

court granted the City's cross motion for summary judg-

ment dismissing the section 1983 civil rights claims.

On January 30, 1990, the trial court entered a partial

summary judgment order, applying a 3-year statute of limi-

tation, holding the City liable for sums paid by the Robin-

sons within 3 years of the filing of the lawsuit. The parties

stipulated to factual issues remaining for trial and waived

jury tral. The City submits it offered to settle this action

for $422,761.12 at this time and that this offer was rejected.

The Robinsons dispute the timeliness of this offer.

On February 28, 1990, the Superior Court awarded the

Robinsons $430,271.47, costs and statutory attorney fees of

$125. The court denied Robinsons’ renewed motion for attor-

ney fees on March 21, 1990.

This action is an appeal from the February 28, 1990, final

judgment and the March 21, 1990, superior court order

denying attorney fees. The City cross-appeals the final judg-

ment and the January 30, 1990, summary judgment order

holding the City liable for refunds. The appeal of the order

dismissing the Robinsons’ action against the individual city

officials has been consolidated.

ISSUES

The following issues are presented:

First: Did the trial court err when it dismissed the Robin-

sons civil rights claims against the City of Seattle?

SECOND: Did the trial court err when it dismissed the

plaintiffs’ civil rights claim against the individual city offi-

cials?

THIRD: Did the trial court err when it awarded a refund

for payments made pursuant to the Housing Preservation

Ordinance, which has been invalidated? (Cross appeal of

City).

Fourtu: If any refunds were proper, did the trial court err

when it applied a 3-year statute of limitation to the plain-

tiffs’ claims?

FiFTH: Did the trial court err in denying the attorney fee

requests of the Robinsons?

ANALYSIS

This case, as well as that of Sintra, Inc. v. Seattle, 119

Wn.2d 1, __ P.2d __ (1992), involves a claim against the

City of Seattle and its officials under 42 U.S.C. § 1983. The

gravamen of such a claim is that a person acting under the

color of state law has deprived a person of a federal right.

Resolution of the civil rights claims in this appeal

requires us to address the much-debated power of govern-

ment to interfere with the free enjoyment of privately

owned property. The commentary on this area indicates this

has been a particularly difficult area of law. See Settle,

Regulatory Taking Doctrine in Washington: Now You See It,

Now You Don't, 12 U. Puget Sound L. Rev. 339 (1989);

Comment, Taking Issue With Takings: Has the Washington

State Supreme Court Gone Too Far?, 66 Wash. L. Rev. 545

(1991). This court's recent opinions in Orion Corp. v. State,

109 Wn.2d 621, 747 P.2d 1062 (1987) (Orion 1), cert. denied,

486 U.S. 1022 (1988); and Presbytery of Seattle v. King Cy.,

114 Wn.2d 320, 787 P.2d 907, cert. denied, 112 L. Ed. 2d 238

(1990) have formulated a comprehensive state “regulatory

takings” doctrine. Thus, this State's current rule on the law

8a

of inverse condemnation has only recently taken shape, and

both this case and that of Sintra, Inc. v. Seattle, supra, are

opportunities for this court to apply recently adopted anal-

ysis.

In this case, the Robinsons allege the City's Housing

Preservation Ordinance took private property without just

compensation, and that enforcement of the Housing Preser-

vation Ordinance violated their substantive due process

rights. Since our treatment of the several issues on appeal

is dependent upon a determination of whether these federal

constitutional mghts were violated, we address first the

issues of the alleged taking and claimed substantive due

process violation. The Robinsons’ claims require an analysis

of when, under state law, a substantive due process remedy

and a takings remedy are available when land use regula-

tions are alleged to be excessive. (This is so because in some

instances the availability of relief under state law bears

upon the accrual of a federal cause of action.) Our state law

inquiry is controlled by this court's decision in Presbytery of

Seattle v. King Cy., supra. In Presbytery, we held the plain-

tiff had not satisfied exhaustion requirements before bring-

ing an action, and thus this court did not have occasion to

apply the test delineated in its decision.

After addressing the contended violations of constitu-

tional nghts under the Presbytery decision, we will address,

in order, the propriety of the trial court's dismissal of the

Robinsons civil mghts actions against the City and the

individual officials, the refunds of payments to the Robin-

sons, the applicable limitation period for this type of action,

and the claim for attorney fees against the City. Like

handling fly paper, it is difficult to put down one piece of

this review when picking up the next. Evaluation of one

subject in this case impacts another issue that in turn

raises another for evaluation and decision. For clarity in

this involved opinion, we set forth the areas of law dis-

cussed separately, although they are interrelated.

ee

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Presbytery Analysis

(1, 2] Under our state regulatory takings jurisprudence,

when a regulation results in a taking, the remedy is just

compensation; and when the regulation violates substantive

due process, the remedy is invalidation of the regulation.

Presbytery, 114 Wn.2d at 331-32."

However, we note that although under Washington law

the remedy for claims that an ordinance violates substan-

tive due process is invalidation, under certain circum-

stances a substantive due process claim for damages may

still be lodged under federal law in state court through the

state court's concurrent jurisdiction in section 1983 cases.

See generally Bley, Use of the Civil Rights Acts To Recover

Money Damages for the Overregulation of Land, 14 Urb.

Law. 223 (1982); Regulating the Timing of Development:

Takings Clause and Substantive Due Process Challenges to

Growth Control Regulations, 24 Loy. L.A.L. Rev. 1205

(1990-1991); 1 S. Steinglass, Section 1983 Litigation in

State Courts § 3.4 (Release 5 1990).

A. Threshold Inquiry.

{3] Under this court's decision in Presbytery, a land use

regulation may be challenged either as an unconstitutional

taking without just compensation or as a violation of sub-

stantive due process. 114 Wn.2d at 329. To determine

whether a takings analysis is available, the first step is a

threshold inquiry. This inquiry asks first whether the

challenged regulation protects the public interest in health,

safety, the environment or fiscal integrity. We contrast such

police power regulation with a regulation that seeks less to

prevent a harm than to impose on those regulated the

requirement of providing an affirmative public benefit. Pres-

bytery, at 329. Second, we ask whether the regulation

destroys or derogates any fundamental attribute of owner-

ship: the rights to possess exclusively, to exclude others, and

‘For clarity, we analyze these theories of relief separately: "These two con-

stitutional theories are alternatives in cases where overly severe land use regu-

lations are alleged. It is critical that these two grounds be separately considered

and independently analyzed because the remedies for each of these types of

constitutional violation are different.” Presbytery, at 329.

10a

to dispose of property. Presbytery, at 329-30. If the regula-

tion does not destroy a fundamental attribute of ownership

and does no more than protect the public health, safety, and

welfare, then the regulation is not subject to a taking

challenge. The challenged regulation is still subject to a

substantive due process challenge for reasonableness.

However, if the regulation either infringes upon a fun-

damental attmbute of property ownership or goes beyond

mere harm prevention to require a property owner to pro-

vide a public benefit, then that regulation is susceptible to a

constitutional taking challenge. Presbytery, at 333.

B. Takings Analysis.

[4] Once a court determines that a regulation is vulner-

able to a taking challenge, it engages in a “taking” inquiry.

The court first determines whether the regulation substan-

tially advances legitimate state interests. If the answer to

this question is "no", then the regulation is a per se taking.

Presbytery, at 333. If the regulation does substantially

advance legitimate state interests, then the court next

determines whether the plaintiffs challenge to the regula-

tion is a facial challenge or an “as applied" challenge. If a

plaintiff alleges the application of the regulation to any

property is a taking, the challenge is a facial one. For facial

challenges, no exhaustion of administrative remedies is

required. Presbytery, at 333. However, if a_ plaintiff

challenges the regulation as it applies to a specific parcel of

property, the challenge to the regulation is "as applied”.

Presbytery, at 333. Exhaustion of administrative remedies is

generally required for “as applied" challenges. See Pres-

bytery, at 337, 338 & n.36; Estate of Friedman v. Pierce Cy.,

112 Wn.2d 68, 80, 768 P.2d 462 (1989).

[5] For a facial challenge to succeed, “the landowner

must show that the regulation denies all economically via-

ble use of any parcel of regulated property in order to con-

stitute a taking.” (Italics ours.) Presbytery, at 333-34. A

determination that a regulation denies all economically via-

ble use of any given parcel of property “should prove to be a

relatively rare occurrence.” Presbytery, at 335.

—————————— LDL

lla

In an “as applied" challenge (involving the application of

the regulation to specific property), the court considers “(1)

the economic impact of the regulation on the property; (2)

the extent of the regulation's interference with investment-

backed expectations; and (3) the character of the govern-

ment action.” (Footnote omitted.) Presbytery, at 335-36.

Once a court determines a taking has occurred, just com-

pensation is mandated. Presbytery, at 337.

C. Substantive Due Process Analysis.

{6, 7] Even if a regulation is not susceptible to a taking

challenge because it does not deny a fundamental attribute

of property ownership and is purely an exercise of the police

power designed to protect the public health, safety and wel-

fare from harm, the regulation is still subject to substantive

due process scrutiny for reasonableness. "The inquiry here

must be whether the police power (rather than the eminent

domain power) has exceeded its constitutional limits.” Pres-

bytery, at 330. The 3-prong due process test is applied,

which inquires: (1) whether the regulation aims to achieve a

legitimate public purpose, (2) whether the means adopted

are reasonably necessary to achieve that purpose, and (3)

whether the regulation is unduly oppressive on the property

owner. Presbytery, at 330; see also West Main Assocs. uv.

Bellevue, 106 Wn.2d 47, 52, 720 P.2d 782 (1986).

The first and second part of this test are often easily met

by challenged government action. The third part is a more

difficult determination. Accordingly, in Presbytery, this court

adopted the following set of guidelines for the third inquiry

for a determination that a regulation was “unduly oppres-

sive”:

The “unduly oppressive” inquiry lodges wide discretion in

the court and implies a balancing of the public's interest

against those of the regulated landowner. We have suggested

several factors for the court to consider to assist it in deter-

mining whether a regulation is overly oppressive, namely: the

nature of the harm sought to be avoided; the availability and

effectiveness of less drastic protective measures; and the eco-

nomic loss suffered by the property owner.

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12a

Presbytery, at 331 (citing Orion Corp. v. State, 109 Wn.2d

621, 655 n.24, 747 P.2d 1062 (1987) (Orion II), cert. denied,

486 U.S. 1022 (1988). This court also has noted a set of

nonexclusive factors for guidance in performing the “unduly

oppressive” balancing test:

On the public's side, the seriousness of the public problem, the

extent to which the owner's land contributes to it, the degree

to which the proposed regulation solves it and the feasibility of

less oppressive solutions would all be relevant. On the owner's

side, the amount and percentage of value loss, the extent of

remaining uses, past, on and future uses, temporary or

permanent nature of the regulation, the extent to which the

owner should have anticipated such regulation and how feas-

ible it is for the owner to alter present or currently planned

uses.

Presbytery, at 331 ‘(citing Stoebuck, San Diego Gas:

Problems, Pitfalls and a Better Way, 25 Wash. U.J. Urb. &

Contemp. L. 3, 33 (1983)).

_If the regulation fails to meet any of the three prongs of

the substantive due process analysis, then it is subject to

invalidation. Under Presbytery, “[n]o compensation (which

properly belongs with a ‘taking’ analysis) is warranted in

the face of a due process violation.” Presbytery, at 332. We

repeat that a violation of a plaintiffs rmghts to substantive

due process (that is, reasonable regulation) may under

limited circumstances form the basis for independent /ed-

eral statutory relief through a section 1983 action, which

affords a damages remedy. The measure of these damages

may differ from the "just compensation" measure.

D. Applying Presbytery to This Case.

[8] Applying the Presbytery analysis to this case, we

begin with the threshold analysis, as the plaintiffs contend

a taking occurred. The HPO regulated the demolition and

removal from the market of housing units by landowners.

Enforcement of the HPO did not destroy any fundamental

rights of property ownership and did not constitute a per-

manent invasion of the property. We conclude, however, that

the ordinance did go beyond preventing a harm, and

required landowners to provide a public benefit in requiring

13a

property owners to pay a fee or replace rental units lost

before removing units or demolishing them. We have on an

earlier occasion stated that the burden of providing this

public benefit was one best borne by the community rather

than by individuals:

(T]he City may not constitutionally pass on the social costs of

the development of the downtown Seattle area to current own-

ers of low income housing. The problem must be shared by the

entire city, and those who plan to develop their property from

low income housing to other uses cannot be penalized by being

required to provide more housing.

San Telmo Assocs. v. Seattle, 108 Wn.2d 20, 25, 735 P.2d

673 (1987). Having applied the threshold test, we conclude

that this case is not beyond a taking challenge. We would

distinguish our threshold determination in this case,

however, from that which may result when the development

of a particular piece of property would cause direct harm to

the environment, such as the destruction of an irreplaceable

wetland or shoreline ecosystem.

We therefore engage in a taking analysis and thus ask

first whether the HPO advanced any legitimate state

interests. Presbytery, at 333. The City persuasively contends

that the housing replacement and tenant assistance provi-

sions were substantially related to preserving low income

housing and assisting tenants experiencing relocation hard-

ships. We conclude the ordinance did advance legitimate

state interests in the general welfare of the citizens of Seat-

tle in attempting to preserve rental housing stock and assist

low income tenants, and therefore was not a per se taking.

Presbytery, at 333. Since the ordinance did advance legiti-

mate state interests, it is necessary to look further and

determine whether the Robinsons’ challenge is facial or “as

applied". Presbytery, at 333.

{9] The Robinsons’ complaint contends the HPO was

"facially invalid" and constituted a taking of whatever

property to which it was applied, and therefore is a facial

challenge. We therefore do not engage in an “as applied”

analysis. In the case of a facial challenge, a taking will be

a

l4a

found only if the landowner shows the regulation denied all

economically viable use of any regulated property. Pres-

bytery, at 333-34. The Robinsons do not provide adequate

basis for such an allegation, nor could they make this “rela-

tively rare’ showing, as the record indicates persons suc-

cessfully developed some properties after paying the HPO

license fees. We therefore hold the Robinsons’ taking claim

fails the Presbytery test for determining a challenged regu-

lation is on its face a taking.

However, we may still proceed to analyze the Robinsons’

claim that the City deprived them of substantive due

process through enforcement of the HPO. The substantive

due process analysis affords a different state law remedy

and is independently undertaken. Presbytery, at 329. Even if

a regulation is not a taking, it must nevertheless pass the

3-prong due process test for reasonableness. Presbytery, at

330. This court has observed that “many challenges to land

use regulations will most appropriately be analyzed under a

due process formula rather than under a ‘taking’ formula.”

Presbytery, at 332-33.

Applying the substantive due process analysis to this

case, we ask first whether the HPO was aimed at achieving

a legitimate public purpose; second, whether the means

used are reasonably necessary to achieve that purpose; and

third, whether the HPO was unduly oppressive. Presbytery,

at 330. The HPO had a legitimate public purpose and

employed reasonable means to achieve it; we therefore con-

clude the HPO satisfies the first two prongs of the due

process test for reasonableness. However, as this court has

previously noted, “[t]he third inquiry will usually be the

difficult and determinative one.” Presbytery, at 331. In the

third inquiry, we ask whether the HPO was unduly oppres-

sive and conclude that it was. We are assisted by the follow-

ing nonexclusive factors previously adopted by this court in

balancing the interests of the City against those of the own-

ers of property regulated by the HPO:

On the public's side, the seriousness of the public problem, the

extent to which the owner's land contributes to it, the degree

15a

to which the proposed regulation solves it and the feasibility of

less oppressive solutions would all be relevant. On the owner's

side, the amount and percentage of value loss, the extent of

remaining uses, past, present and future uses, temporary or

permanent nature of the regulation, the extent to which the

owner should have anticipated such regulation and how feas-

ible it is for the owner to alter present or currently planned

uses.

Presbytery, at 331 (citing Stoebuck, San Diego Gas:

Problems, Pitfails and a Better Way, 25 Wash. UJ. Urb. &

Contemp. L. 3, 33 (1983)).

We review these nonexclusive factors in balancing the

City's interests against the Robinsons’. The public problem

of homelessness is certainly serious. The extent to which an

owner's land or property particularly contributes to a public

problem may in certain instances be determinative, such as

in some environmental protection cases. However this factor

is not particularly crucial in this action because these urban

properties already have multiple potential uses. The prob-

lems of homelessness and a lack of low income housing in

Seattle are in part a function of how all Seattle landowners

are using their property. We further conclude that both the

feasibility of less harsh means of achieving the City's pur-

pose and the permanence of the nonzoning regulation in

controlling the type of use of the landowner's property mili-

tate against the City. This court has already said of the

HPO that solving the problem of the decrease in affordable

rental housing in the city of Seattle is a burden to be shoul-

dered commonly and not imposed on individual property

owners. San Telmo, 108 Wn.2d at 25. We hold the HPO to

be an unduly oppressive, and thus unreasonable, regulation.

It therefore violated the rights of the Robinsons to substan-

tive due process under our holding in Presbytery, at 331-32.

(10, 11] If an ordinance unduly oppresses a property

owner and is struck down as violative of due process, then

the law of this State provides a remedy of invalidation.

Presbytery, at 331-32. The ordinance in this case, the HPO,

has already been invalidated on other grounds. However, as

a substantive due process violation is a deprivation of a

i elle

16a

federal constitutional right, the Robinsons may also be enti-

tled to seek a damages remedy under federal statutes.

“Along with the vast majority of federal courts, we recognize

that denial of a building permit . . . may give rise to a

substantive due process claim” under 42 U.S.C. § 1983. R/L

Associates, at 412. The plaintiffs’ state law remedies are at

this point complemented by the resort to 42 U.S.C. § 1983;

federal relief in this instance picks up where state relief

leaves off. Property rights, in addition to personal liberties,

are within the protection of 42 U.S.C. § 1983. Gibson v.

Seattle (Wash.) Dep't of Police, 472 F.2d 1220 (9th Cir. 1973).

What must be proved by a section 1983 plaintiff may

involve more than is necessary for establishing a right to

relief under Presbytery. In many cases this means that bur-

dens will be more difficult, but also that additional remedies

will be available in section 1983 cases.

Before venturing further, we wish to reemphasize that

"[mJere regulation on the use of land has never constituted

a ‘taking’ or a violation of due process under federal or state

law.” Presbytery, at 327. In the exercise of the police power

regarding property use, such as in zoning and building per-

mit requirements, government may legitimately impose

many types of restrictions or development conditions on a

landowner. An inexhaustive sampling of regulations would

include building height, setbacks from the street, require-

ments for streets and access, dedication of easements for

the public use, and creation of parks or green space in

residential developments, and many environmental regula-

tions. Impositions of these conditions, regulations, or

restrictions are not per se violative of substantive due

process or the taking clause.

Section 1983 Remedy

The Robinsons assign error to the trial court's ruling dis-

missing their section 1983 claims on summary judgment.

They argue they are entitled to prevail on their section 1983

claims on the basis of a substantive due process violation

committed by the City. The basis for this section 1983

17a

substantive due process claim is the alleged violation of the

plaintiffs constitutional property rights by the City’s

unreasonable regulation of land use through enforcement of

invalidated ordinance provisions. The Robinsons submit

that imposition of an illegal condition on a land use permit,

and the violation of a court order, deprived their class of

substantive due process.

[12] State courts have concurrent jurisdiction in actions

brought under 42 U.S.C. § 1983. See Lange v. Nature Con-

servancy, Inc., 24 Wn. App. 416, 601 P.2d 963 (1979), cert.

denied, 449 U.S. 831 (1980); Martinez uv. California, 444

U.S. 277, 283 n.7, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980).

The trial court in the Robinsons’ case dismissed their civil

rights claims on summary judgment. The City argues the

trial court dismissal should be affirmed, as the Robinsons

failed to state a prima facie case for either inverse condem-

nation or a substantive due process violation.

{13] In considering an appeal from an order of summary

judgment, this court engages in the same inquiry as the

trial court. Neubert v. Yakima-Tteton TIrrig. Dist., 117 Wn.2d

232, 236, 814 P.2d 199 (1991). The reviewing court is to

consider all the facts submitted and all reasonable infer-

ences from the facts in the light most favorable to the non-

moving party. Marincovich v. Tarabochia, 114 Wn.2d 271,

274, 787 P.2d 562 (1990). Under CR 56(c), summary judg-

ment is only appropriate

if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.

We accordingly review the Robinsons’ action in light of the

whole record in determining whether the City was entitled

to judgment as a matter of law. The applicable law is 42

U.S.C. § 1983.

A. Basis for Section 1983 Complaint.

[14-16] 42 U.S.C. § 1983 is a remedial statute; it does not

create any new substantive rights. Its function is to allow

an avenue of redress to persons injured by the actions of

18a

government which violate federal constitutional rights. Sec-

tion 1983 has been used often as a means of redress when

government land use regulation infringes upon federal con-

stitutional or statutory rights through violations of the tak-

ing clause or of due process. See Bley, Use of the Civil

Rights Acts To Recover Money Damages for the Overregula-

tion of Land, 14 Urb. Law. 223, 225 n.12 (1982). 42 U.S.C. §

1983 states in pertinent part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, or any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the juris-

diction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress.

The main elements of a section 1983 action which a plaintiff

must demonstrate to state a cause of action are: (1) a per-

son has deprived the plaintiff of a federal constitutional or

statutory mght, and (2) that person acted under color of

state law. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir.

1989); Brower v. Wells, 103 Wn.2d 96, 104-05, 690 P.2d 1144

(1984). A municipality may be a “person” for purposes of

section 1983. Monell v. Department of Social Servs., 436

U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).

[17] A municipality may be subject to suit under section

1983 of the federal civil mghts statutes when that munici-

pality acts through an ordin. nce. R/L Assocs., Inc. v. Seat-

tle, 113 Wn.2a 402, 780 P.2d 838 (1989). In addition, a

municipality may be liable on a section 1983 civil rights

claim when a city employee violates a federally protected

right while executing a policy or ordinance officially adopted

and implemented by city officials. Learned v. Bellevue, 860

F.2d 928 (9th Cir. 1988), cert. denied, 489 U.S. 1079 (1989).

The plaintiffs in this case sued the City of Seattle, which

may be recognized as a “person” under section 1983, as well

as bringing action against several city employees in both

their official and individual capacities. The Robinsons

alleged a violation of their federal constitutional rights was

—————---—-——

19a

committed by the City and its employees acting pursuant to

an ordinance (the HPO); and a municipality may be subject

to section 1983 liability when it acts through an ordinance.

R/L Assocs., at 411-12.

We reject the City's contention that this court in R/L

Assocs. held as a matter of law that Seattle's enforcement of

the HPO could not give rise to a civil rights claim. As the

Robinsons point out, this court simply did not consider that

issue on appeal:

While R/L pleaded a section 1983 claim, it made no allega-

tion of irrational, or arbitrary or capricious conduct on the

part of the City in its denial of R/L's demolition license.

Moreover, this issue was not presented to or considered by the

trial court, and will not be considered on appeal.

R/L Assocs., Inc. v. Seattle, at 412. The city action at issue

in R/L Assocs. was the imposition of the HPO's tenant relo-

cation assistance requirement upon, the landowner prior to

the time that particular provision of the HPO was declared

facially invalid by the King County Superior Court. The

Robinsons submit that by contrast, in their case they do

plead arbitrary and capricious conduct, and that this case

involves the enforcement of HPO provisions even after the

time of the superior court decree ruling the provisions

invalid. According to the Robinsons, the “strongest” evi-

dence of irrationality in city action is the enforcement of the

HPO after trial courts had held it invalid and enjoined

further enforcement; e.g., in one instance, a trial court rul-

ing was followed by a press conference to the effect that the

City would continue enforcement of the HPO against all but

the successful plaintiffs in the action. See R/L Assocs., at

411.

The City did continue enforcement of the HPO's various

provisions after trial court declarations of invalidity. In San

Telmo Assocs. v. Seattle, 108 Wn.2d 20, 735 P.2d 673 (1987),

this court affirmed a superior court ruling of invalidity,

holding the HPO invalid as an unauthorized tax or fee on

the development of land prohibited by RCW 82.02.020. San

Telmo, at 23-24. Later, this court in R/L Assocs. held the

IB sniiicmneateinaiaitiea ieee

20a

tenant relocation assistance provisions of the HPO also

invalid. R/L Assocs., at 411. This court went further, uphold-

ing the contempt ruling of the Superior Court entered

against the City's officers for their continued enforcement of

the tenant relocation assistance provisions after the provi-

sions were ruled invalid. R/L Assocs., at 411. In our opinion,

we expressly’ rejected an argument by the City that a

Superior Court's ruling of invalidity was binding on the City

only as against the plaintiff to the action:

[T]he City’s argument would lead to the absurd conclusion

that it is free to enforce the provisions of a facially invalid

ordinance against the citizens of Seattle until and unless each

aggrieved party brings its own action challenging the ordi-

nance. This would lead to multiple and unnecessary litigation

upon an issue in which the City has clearly been denied

authority to proceed.

R/L Assocs., at 411. We went on to instruct the City further:

The City observes that an injunction does not determine the

rights and interests of persons who are not joined as parties.

We agree. However, the City overlooks the fact that it is a

party, and CR 65(d) provides that an order granting an injunc-

tion is binding upon the parties to the action and their officers

and agents.

R/L Assocs., at 411. Finally, in affirming the order of con-

tempt, we observed:

The City's decision to continue to enforce the HPO was

deliberate. Two days after issuance of the injunction in this

case, the City issued a news release that the city attorney had

advised the Department of Construction and Land Use to con-

tinue to enforce the tenant relocation requirements. The

release stated that the City had been enjoined from enforcing

this provision in one case. The courts need not tolerate this

intentional violation of a valid judgment that prohibited the

City from enforcing those provisions.

R/L Assocs., at 411.

B. Civil Rights Claim Against City Valid.

[18-20] A city cannot be held liable in damages for the

mere enforcement of an unconstitutional or void ordinance

in the nature of a police power regulation. R/L Assocs., at

412. A land use decision denying substantive due process

states a cause of action under section 1983 only if it is

een

’ ei

2la

invidious or irrational, see R/L Assocs., at 412, or arbitrary,

Bateson v. Geisse, 857 F.2d 1300, 1303 (9th Cir. 1988).

However, in this case we conclude that the Robinsons state

a proper claim for violation of substantive due process

under section 1983, and further that genuine issues of

material fact remain. Therefore, the Robinsons’ action

should be allowed to proceed to trial for a decision on the

facts. We so hold not merely because the City enforced an

invalid or unconstitutional ordinance, but because the City

continued to enforce ordinance provisions after they had

been declared on separate, respective occasions to be invalid

by trial courts.

We first consider whether the Robinsons adequately

plead a violation of substantive due process for the purposes

of section 1983. To successfully challenge a governmental

action or regulation in a section 1983 action on substantive

due process grounds, the plaintiff must plead and prove

that the challenged government action is wholly arbitrary

and capricious or irrational, or utterly fails to serve a legiti-

mate purpose. See Regulating the Timing of Development:

Takings Clause and Substantive Due Process Challenges to

Growth Control Regulations, 24 Loy. L.A.L. Rev. 1205, 1225

(1990-1991) (citing Nelson v. Selma, 881 F.2d 836, 839 (9th

Cir. 1989); Greenbriar, Ltd. v. Alabaster, 881 F.2d 1570, 1577

(11th Cir. 1989); Pace Resources, Inc. v. Shrewsbury Town-

ship, 808 F.2d 1023, 1034-35 (3d Cir.), cert. denied, 482 U.S.

906, reh'g denied, 483 U.S. 1040 (1987)). The Robinsons’

allegation in the complaint that "Defendants have mali-

ciously, recklessly, and/or wantonly" violated constitutional

rights is sufficient to plead either “irrational or invidious" or

“arbitrary and capricious” conduct as required.

A substantive due process claim does not require proof

that all use of one’s property has been denied. Herrington v.

County of Sonoma, 834 F.2d 1488, 1498 (9th Cir. 1987).

Rather, the plaintiff must show that the interference with

property rights was irrational or arbitrary. Usery v. Turner

Elkhorn Mining Co., 428 U.S. 1, 15, 49 L. Ed. 2d 752, 96 S.

Ct. 2882 (1976). Where a plaintiff seeking section 1983

22a

relief alleges that a municipality's land use authorities vio-

lated plaintiff's rights to substantive due process, the plain-

tiff bears the burden of demonstrating that the govern-

mental action was arbitrary, irrational, or tainted by

improper motive. De Botton v. Marple Township., 689 F.

Supp. 477, 481 (E.D. Pa. 1988). The plaintiff's complaint

must allege facts that would support a finding of irrational

or arbitrary action. De Botton, at 481 (citing Pace Resources,

Inc. v. Shrewsbury Township, supra).

In Pace Resources, the court upheld the denial of the

defendant's motion to dismiss the plaintiffs substantive due

process claims since the plaintiff alleged facts from which a

jury could conclude the municipality acted in an arbitrary

or irrational manner in land use decisions. The court noted

that although the town claimed its actions were taken in an

entirely reasonable manner, this was a question that could

be addressed at trial. De Botton, at 481.

{21] Property owners may also raise due process claims

without first seeking just compensation through state court

remedies. Sinaloa Lk. Owners Ass'n v. Simi Vly., 882 F.2d

1398, 1404-05 (9th Cir. 1989) (amended opinion), cert.

denied sub nom. Doody v. Sinaloa Lk. Owners Ass'n, Inc.,

494 U.S. 1016, 108 L. Ed. 2d 493, 110 S. Ct. 1317 (1990). A

plaintiff is not required to seek compensation from a state

entity before bringing a substantive due process claim

because substantive due process is violated at the moment

harm occurs; thus, the existence of postdeprivation state

remedies does not bar a section 1983 action. Bateson v.

Geisse, 857 F.2d 1300, 1303 (9th Cir. 1988) (citing Ruther-

ford v. Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986)). In

Bateson, the Ninth Circuit affirmed a district court finding

that the Billings, Montana, city council's refusal to issue a

building permit to the plaintiff after he had satisfied all

permit requirements was an arbitrary and capricious act

which denied Bateson substantive due process. The City

points to distinctions between this case and Bateson, such

as the fact that in Bateson the city council acted contrary to

23a

the advice of counsel and singled out one individual for its

conduct.

[22] Because a finder of fact could determine the City

acted arbitrarily and capriciously in repeatedly continuing

enforcement of the HPO, rather than seeking to stay the

force or effect of rulings of invalidity and injunctions against

enforcement, genuine issues of material fact remain to be

determined. CR 56(c). This determination is for the finder of

fact after hearing testimony and receiving evidence.

We hold the Robinsons properly stated a cause of action

under 42 U.S.C. § 1983, having alleged their constitutional

rights (to substantive due process) were violated by "per-

sons” (the City of Seattle and its officials) acting under color

of law (the Housing Preservation Ordinance). Their claim is

based in an impairment of constitutional property rights

caused by the City of Seattle's unreasonable, continued

enforcement of a land use regulation previously invalidated

by a trial court. As genuine issues of material fact remain to

be decided, the trial court erred in dismissing the Robin-

sons’ civil rights action against the City on summary judg-

ment. The liability of the City to the Robinsons under

section 1983, and to what degree possible civil rights

damages are available, are matters to be determined in trial

court.

Qualified Immunity

In the Robinsons’ consolidated action from the Court of

Appeals, they challenge the dismissal of their 42 U.S.C. §

1983 claims against the individual city officials who were

also defendants in their personal capacities in the original

suit. The officials being pursued in their individual capaci-

ties by the Robinsons are: William Justen, Holly Miller, and

Beatrice Ryan, successive directors of the Department of

Construction and Land Use; and Ovid Thompson, an officer

responsible for enforcement of the HPO. The Robinsons con-

tend the officials are not proper candidates for qualified

immunity from liability, arguing that under Harlow v. Fitz-

gerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727

24a

(1982), the officials violated “clearly established rights” of

which a reasonable person would have known.

The City contends that William Justen, Holly Miller, Bea-

trice Ryan and Ovid Thompson are entitled to qualified

immunity because these officials enforced the HPO on the

advice of counsel at a time when the land use doctrines on

regulatory takings and substantive due process violations

were in a state of change and uncertainty, with the rights of

the Robinsons being not “clearly established”. The City sub-

mits that the validity of the HPO was an issue on the

cutting edge of land use regulatory law in the United States

during the time the superior court rulings invalidating the

HPO were entered. As support for this argument, the City

cites several cases indicating that other jurisdictions have

upheld police power regulations restricting the removal of

rental units from the market in order to maintain a low

income rental housing base in a city or restricting a

landowner's rights to demolish property. See Terminal Plaza

Corp. v. City & Cy. of San Francisco, 177 Cal. App. 3d 892,

223 Cal. Rptr. 379 (1986); Help Hoboken Housing uv.

Hoboken, N.J., 650 F. Supp. 793 (D.N.J. 1986); Nash v.

Santa Monica, 37 Cal. 3d 97, 207 Cal. Rptr. 285, 688 P.2d

894 (1984), appeal dismissed, 470 U.S. 1046 (1985); Grace v.

Brookline, 379 Mass. 43, 399 N.E.2d 1038 (1979).

[23] Local government entities are not entitled to the

qualified immunity available to their officials. Owen v.

Independence, Mo., 445 U.S. 622, 63 L. Ed. 2d 673, 100 S.

Ct. 1398 (1980). Further, in contrast to the rule in section

1983 actions against municipalities, or against municipal

officers sued in their official capacities, plaintiffs who bring

personal capacity suits against officials need not establish a

connection to governmental “policy or custom" in the

defendant's actions. Hafer v. Melo, __ U.S. ___, 116 L. Ed.

2d 301, 112 S. Ct. 358, 361-62 (1991) (citing Kentucky v.

Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct.

3099 (1985)). Government officials performing discretionary

functions, however, cannot be held personally liable for

damages under section 1983 of the federal civil rights

25a

statute unless their conduct violates clearly established fed-

eral constitutional or statutory rghts; such persons are

entitled to qualified immunity from a claim under section

1983 if their conduct is objectively reasonable when mea-

sured against clearly established law. Thorsted v. Kelly, 858

F.2d 571 (9th Cir. 1988); Wood v. Ostrander, 879 F.2d 583

(9th Cir. 1989). Qualified immunity from suit must be

granted when the law or right allegedly violated is not

clearly established. Conner v. Santa Ana, 897 F.2d 1487,

1492 (9th Cir. 1990).

Qualified immunity protects government officials from

insubstantial suits and harassing litigation while at the

same time not foreclosing suits for damages which may be

the only realistic avenue for the vindication of constitutional

rights of the plaintiff. Harlow v. Fitzgerald, supra at 814.

The standard for an oificial seeking the shield of the quali-

fied immunity defense is an objective, and not a subjective,

standard. Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d

523, 107 S. Ct. 3034 (1987). It is no defense to a section

1983 action that a defendant had no specific intent to cause

a deprivation of civil rights. United Steelworkers v. Mil-

stead, 705 F. Supp. 1426, 1436 (D. Ariz. 1988); Gomez v.

Toledo, 446 U.S. 635, 64 L. Ed. 2d 572, 100 S. Ct. 1920

(1980).

[24] Since qualified immunity entitles government offi-

cials to “an immunity from suit rather than a mere defense

to liability" under Mitchell v. Forsyth, 472 U.S. 511, 526, 86

L. Ed. 2d 411, 105 S. Ct. 2806 (1985), it is critical that

insubstantial claims be resolved as quickly as _ possible.

Thorsted, 858 F.2d at 575 (citing Anderson v. Creighton, 483

U.S. at 640 n.2). Thus, when available, the defendant's

entitlement to qualified immunity may be established as a

matter of law on a motion for summary judgment or for a

directed verdict.

[25] Once the affirmative defense of qualified immunity

has been raised in a case on a defendant's motion for sum-

mary judgment, the plaintiff bears the burden of demon-

strating the existence of the allegedly “clearly established”

26a

constitutional right. See Mitchell v. Forsyth, 472 U.S. at

526:

Unless the plaintiffs allegations state a claim of violation of

clearly established law, a defendant pleading qualified immu-

nity is entitled to dismissal before the commencement of dis-

covery. .. . Even if the plaintiffs complaint adequately alleges

the commission of acts that violated clearly established law,

the defendant is entitled to summary judgment if discovery

fails to uncover evidence sufficient to create a genuine issue as

to whether the defendant in fact committed those acts.

Regarding the "clearly established" standard, the

Supreme Court has indicated that a certain degree of

predictability is required: ;

The contours of the mght must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right. This is not to say that an official action is

protected by qualified immunity unless the very action in

question has previously been held unlawful . . . but it is to say

that in the light of pre-existing law the unlawfulness must be

apparent.

Anderson v. Creighton, 483 U.S. at 640. See Sintra, Inc. v.

Seattle, 119 Wn.2d 1, 25, __. P2d ___ (1992). The City has

pointed to cases in other jurisdictions upholding the con-

stitutional validity of ordinances which the City convinc-

ingly argues are similar to the HPO in intent and effect. We

are therefore persuaded that it was not “clearly established"

when HPO-1 and HPO-2 were enacted that these regula-

tions would violate substantive due process or other federal

constitutional or statutory rights of persons owning the

regulated property. Thus, while we have concluded that the

ordinance in question violated substantive due process

under Presbytery, this holding does not by itself lead to the

conclusion that a section 1983 claim may proceed against

the individual defendants. Rather, the substantive due

process violation underlying this section 1983 action is the

enforcement of HPO provisions after they were declared

invalid on separate occasions. Therefore, we focus our

inquiry on the question of whether enforcement of HPO

provisions by city officials after such provisions had been

declared invalid would violate “clearly established” nghts.

27a

{26] In the absence of binding precedent as to whether

the conduct of officials violated clearly established statutory

or constitutional rights of which a reasonable person would

have known, a court should look to whatever decisional law

is available to ascertain whether the law is “clearly estab-

lished". Capoeman v. Reed, 754 F.2d 1512 (Sth Cir. 1985).

There existed, at the time of the HPO enforcement,

authority in our federal circuit denying immunity of any

kind to officials who violate an order of a duly appointed

administrative body, let alone a court of law, when the

result of this violation implicated federal constitutional

rights. In Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970),

a case predating Harlow, officials disobeyed an administra-

tive order directing reinstatement of an employee who had

been discharged in violation of his First Amendment rights.

The court reasoned that the administrative order was like a

court order and said: “'Obviously no immunity should be

granted to the officials who wilfully disobeyed an order of

court, " Donovan, at 744 (quoting Hoffman v. Halden, 268

F.2d 280, 300 (9th Cir. 1959)).

[27] In general, the shield of qualified immunity does not

extend to those officials who knowingly violate the law.

Mills v. Graves, 930 F.2d 729 (9th Cir. 1991). Here, it is

acknowledged by the City that “it may be clearly estab-

lished that a knowing violation of a court order or adminis-

trative regulation violates substantive due _ process’.

Consolidated Appeal Brief of Respondents, at 39 (citing

Donovan v. Reinbold, supra). The City, however, contends

that while officials Miller and Thompson were held in con-

tempt for violating a court order, this does not establish a

knowing violation, since only an intentional, deliberate

action which violates a court order is required for a finding

of contempt, and knowledge that one is committing a viola-

tion is not required. R/L Assocs., Inc. v. Seattle, 113 Wn.2d

402, 410-11, 780 P.2d 838 (1989). We do not deny qualified

immunity to Miller and Thompson simply because they

were found in contempt. The record in this case indicates all

the individual defendants possessed actual knowledge of

28a

court rulings invalidating the HPO and yet continued

enforcement. By so doing, these officials exposed the City of

Seattle and themselves to liability for unreasonable enforce-

ment of land use regulations in violation of the plaintiffs’

constitutional property rights.

The individual defendants maintain, however, that they

only followed advice of the city attorneys. We note the

Supreme Court has recently held that in the context of

section 1983 actions prosecutors are not entitled to absolute

immunity for legal advice given to police officers and has

indicated that the Harlow objective standard applies to

police conduct without reference to legal advice rendered by

the prosecuting attorney:

Although the absence of absolute immunity for the act of giv-

ing legal advice may cause prosecutors to consider their advice

more carefully, " [w]here an official could be expected to know

that his conduct would violate statutory or constitutional

rights, he should be made to hesitate.'" . . . (quoting Harlow,

457 U.S., at 819, 102 S.Ct., at 2738). Indeed, it is incongruous

to allow prosecutors to be absolutely immune from liability for

giving advice to the police, but to allow police officers only

qualified immunity for following the advice. Cf. Butz [v.

Economou,] 438 U.S. [478], at 505-506, [57 L. Ed. 2d 895,] 98

S.Ct. [2894 (1978)]. Ironically, it would mean that the police,

who do not ordinarily hold law degrees, would be required to

know the clearly established law, but prosecutors would not.

Burns v. Reed, __ U.S. __, 114 L. Ed. 2d 547, 111 S. Ct.

1934, 1944 (1991).* It was suggested in Donovan that even

the city attorney who advises disregard of a court order

would also be liable rather than immune from suit. 433 F.2d

at 744.

‘In contrast the prosecutor's participation in a probable cause hearing in

Burns was held absolutely immune. Burns, 111 S. Ct. at 1942. The distinction is

based on the function the prosecutor performs.

|Plrosecutors are absolutely immune from liability under § 1983 for their

conduct in “initiating a prosecution and in presenting the State's case,” . .

{Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976)] 96

S.Ct, at 995, insofar as that conduct is “intimately associated with the

judicial phase of the criminal process,” . . . 96 S.Ct., at 995.

Burns, 111 S. Ct. at 1939 :

29a

In this case, the individual defendants, while officials of

the City, continued to enforce provisions of the HPO after

such provisions had been declared invalid by a court of

competent jurisdiction. The record indicates that all of the

individual defendants possessed actual knowledge of the

superior court rulings invalidating the HPO. We find no

basis for extending qualified immunity to the individual

defendants in this case in the contention that they were

acting pursuant to the advice of city attorneys in continuing

to enforce the HPO provisions in spite of the superior court

decisions. The city officials may very well have had the

public welfare in mind in continuing enforcement of judi-

cially invalidated HPO provisions, but intentional violations

of court orders cannot be tolerated. At least one official

stated in a deposition that it was his responsibility to con-

tinue enforcement of the HPO provisions even if he believed

the ordinance to be unconstitutional. Regardless of an

individual official's beliefs, a court's rulings which invali-

date an ordinance and order a City to stop enforcement are

to be obeyed. Respect for the rule of law is central to due

process.

The trial court in this case erred in extending the shield

of qualified immunity to the individual city officials for their

enforcement of HPO provisions after respective provisions

had been declared facially invalid by courts of competent

jurisdiction and injunctions against continued enforcement

had been entered.° Although we decline to extend qualified

immunity to the individual defendants, the ultimate issue

of their liability under section 1983 is a question which

remains to be determined by the finder of fact.

We distinguish for elucidation the case of Walnut Proper-

ties, Inc. v. Whittier, 861 F.2d 1102 (9th Cir. 1988), cert.

denied, 490 U.S. 1006 (1989). In Walnut Properties, a city

attorney and city planning director were sued by an adult

“We note that another court has declined to extend qualified immunity to

section 1983 defendants by holding that disobedience of a court order was not a

discretionary act entitled to immunity. See Front Royal & Warren Cy. Indus

Park Corp. v. Front Royal, Va., 708 F. Supp. 1477 (W.D. Va. 1989)

j

30a

theater after they recommended reenactment of the City's

adult business zoning ordinance which had previously been

ruled unconstitutional. While a prior district court opinion

had ruled the earlier ordinance unconstitutional, a lack of

circuit precedent on point demonstrated that the reenact-

ment of the ordinance was not clearly established to be in

violation of the plaintiffs rights, when that reenactment fol-

lowed a new counsel study with special findings which had

been prepared. Thus the city attorney and city planning

director were held entitled to qualified immunity in that

case. Since the City of Whittier had to reenact the

ordinance in question, this indicates that contrary to the

facts in the present case, the Whittier officials first with-

drew their challenged ordinance from enforcement before

advising the reenactment. Unlike the Walnut Properties

case, the HPO provisions struck down by trial courts in this

case were never withdrawn until this court spoke, not even

during the time of the ordinance's redrafting after the first

superior court declaration of invalidity in King County

cause 83-2-06176-8 (Oct. 13, 1983). Nor did the City in this

case seem to acknowledge the authority of the trial court by

asking for a stay.

The longstanding rule for section 1983 actions in the

Ninth Circuit is that an official who acts in knowing viola-

tion of an order of court is not entitled to qualified immu-

nity when these same acts contribute to the basis of the

plaintiff's section 1983 claim. The defendants in this case

had actual notice of the court rulings of HPO invalidity. We

therefore reverse the trial court grant of qualified immunity

to the individual defendants and remand with instructions

to reinstate those section 1983 substantive due process

claims against individual defendants which are not time

barred by the applicable statute of limitation discussed

below.

We emphasize in this case the presence of injunctive relief

precluding enforcement, as well as declarations of invalidity,

and not merely an adverse ruling against the City. The City

neither sought a stay nor appealed these rulings but

3la

instead chose to continue enforcement in the face of court

orders to the contrary.

VALIDITY OF REFUNDS OF HPO PayMENTS

While the City submits that refunds of HPO payments

were correctly restricted by the trial court to a 3-year

statute of limitation period, the City alternatively argues on

cross appeal that the trial court erred in refunding any

moneys paid by the Robinsons prior to this court's decisions

in San Telmo Assocs. v. Seattle, 108 Wn.2d 20, 735 P2d 673

(1987) and R/L Assocs., Inc. v. Seattle, 113 Wn.2d 402, 780

P.2d 838 (1989).

A. Retroactive vs. Prospective Application.

The City contends the refunds the trial court awarded

were based upon an improper retroactive application of the

San Telmo and R/L Assocs. decisions which invalidated the

HPO. To apply an appellate decision "retroactively" means

to apply its holding to causes of action which arose prior to

the announcement of the decision. Retroactive application of

the San Telmo and R/L Assocs. decisions, the City submits,

would be contrary to this court's decision in National Can

Corp. v. Department of Rev., 109 Wn.2d 878, 749 P.2d 1286,

appeal dismissed, cert. denied, 486 U.S. 1040 (1988).° The

Robinsons argue that, to the contrary, the criteria stated by

this court in National Can favor the trial court's award of

refunds to the plaintiffs in this class action.

“National Can dealt with the appropriateness of refunds of money collected

pursuant to taxes invalidated on constitutional grounds. The United States

Supreme Court had held Washington's multiple activities exemption to the state

business and occupation tax discriminated against interstate commerce in viola-

tion of the commerce clause; and after vacating this court's decisions in Tyler

Pipe Indus., Inc. v. Department of Rev., 105 Wn.2d 318, 715 P.2d 123 (1986) and

National Can Corp. v. Department of Rev., 105 Wn.2d 327, 732 P.2d 134 (1986),

vacated, 483 U.S. 232, 97 L. Ed. 2d 199, 107 S. Ct. 2810 (1987), remanded for a

decision of the refund issues raised by the federal ruling:

The decisive issues before this court are whether state law mandates

refunds, and if not, whether this is an appropriate case for prospective

application. We hold state law does not require refunds, and prospective

application is appropriate.

National Can, 109 Wn.2d at 880.

Basia aan

32a

In National Can, this court held the invalidation of a

statutory taxing scheme does not automatically entitle a

taxpayer to a refund. Before an HPO refund is allowed in

this case, the City submits that under National Can this

court must determine whether a refund (requiring retroac-

tive application of the cases invalidating the HPO to the

Robinsons’ claims) is equitable. “Since Washington law does

not foreclose an inquiry into prospective application, we

turn to the factors enunciated by the United States

Supreme Court to determine whether prospective applica-

tion is to be afforded in this case.” National Can, at 881. In

making this analysis, the court in National Can utilized the

following 3-factor approach:

(1) determine whether the decision establishes a new principle

of law either by overruling clear past precedent on which

litigants may have relied, or by deciding an issue of first

impression whose resolution was not clearly foreshadowed; (2)

weigh the merits and dements in each case by looking to the

prior history of the rule in question, its purpose and effect and

whether retrospective operation will further or retard its oper-

ation; and (3) weigh the inequity imposed by retroactive appli-

cation.

National Can, at 881 (citing Chevron Oil Co. v. Huson, 404

U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971)).

The City contends, citing the Chevron Oil analysis upon

which National Can rests, that this case calls for prospec-

tive application of both the San Telmo and R/L Assocs.

decisions. This is because those decisions established a new

principle of law, and (1) this new principle was not clearly

foreshadowed, (2) this new principle would not. further the

purposes of those two cases to apply their rules retrospec-

tively, and (3) retroactive application of this new principle

would be inequitable.

The Robinsons claim to the contrary that even if appli-

cable, National Can's analysis under the Chevron Oil rule

favors retroactive application. The Robinsons argue they are

entitled to refunds of payments made pursuant to the HPO,

as neither their case nor the San Telmo or R/L Assocs.

decisions involved the overruling of clear past precedent. As

33a

to purpose, they add that neither the San Telmo nor

the R/L Assocs. decisions limited recovery of fees to prospec-

tive application only, unlike the decision in National Can.

The Robinsons finally argue they would be entitled to

refunds even in the absence of the holdings of San Telmo

and R/L Assocs., as their suit relied on preexisting law, and

note that their suit was filed before this court's decision in

R/L Assocs.

Both parties to this action agree that the Chevron Oil Co.

v. Huson, supra, analysis relied upon in National Can is

relevant to our determination of whether the rules of our

San Telmo and R/L Assocs. decisions should be applied

retroactively. However, the United States Supreme Court

has recently limited. the Chevron Oil Co. v. Huson, supra,

rule regarding retroactive application in the case of James

B. Beam Distilling Co. v. Georgia, __ U.S. __, 115 L. Ed.

2d 481, 111 S. Ct. 2439 (1991).

B. Beam Distilling Rule.

Beam Distilling dealt with a challenge to a pre-1985

Georgia law imposing an excise tax on imported liquor at a

rate double the rate imposed on liquor manufactured from

Georgia-grown products. After the United States Supreme

Court struck down a similar Hawaii law as violative of the

commerce clause in Bacchus Imports, Ltd. v. Dias, 468 U.S.

263, 82 L. Ed. 2d 200, 104 S. Ct. 3049 (1984), the Beam

Distilling petitioner, a Kentucky bourbon manufacturer,

then filed suit in Georgia state court seeking a refund of

taxes it had paid under the Georgia law in 1982, 1983, and

1984. The Georgia trial court declared the Georgia statute

unconstitutional, but refused to apply its ruling retroac-

tively; and thus it would not allow a refund of taxes paid by

the Kentucky bourbon manufacturer for 1982, 1983, and

1984. As support for this ruling, the trial court cited the

rule of Chevron Oil Co. v. Huson, supra, that a decision will

be applied prospectively when that decision displaces a

principle of law on which the defendant may reason-

ably have relied, when retroactivity does not further the

objectives of the new rule, and when the equities favor

eens

DRT LLLLaaQYE

34a

prospective application. The State Supreme Court in Geor-

gia affirmed the decision of the tmal court. However, the

United States Supreme Court reversed that decision and in

a plurality held in favor of retroactive application of the

Bacchus decision to the parties in Beam Distilling. 115 L.

Ed. 2d at 491.

[28] Justice Souter delivered the opinion of the court in

Beam Distilling. It states that the question of whether a

newly announced rule of an appellate decision should apply

retroactively is a choice of law question for which there are

three possible answers. The first possible choice of law

approach is to apply a new rule completely retroactively:

First, a decision may be made fully retroactive, applying both

to the parties before the court and to all others by and against

whom claims may be pressed, consistent with res judicata and

procedural barriers such as statutes of limitations. This prac-

tice is overwhelmingly the norm .. . and is in keeping with the

traditional function of the courts to decide cases before them

based upon their best current understanding of the law.

(Italics ours.) Beam Distilling, 115 L. Ed. 2d at 488. The

second choice of law approach is to apply the new rule

completely prospectively:

Second, there is the purely prospective method of overruling,

under which a new rule is applied neither to the parties in the

law-making decision nor to those others against or by whem it

might be applied to conduct or events occurring before that

decision. The case is decided under the old law but becomes a

vehicle for announcing the new, effective with respect to all

conduct occurring after the date of that decision. This Court

has, albeit infrequently, resorted to pure prospectivity . . .

although in so doing it has never been required to distinguish

the remedial from the choice-of-law aspect of its decision. . . .

This approach claims justification in its appreciation that

“[t]he past cannot always be erased by a new judicial declara-

tion,’ . .. and that to apply the new rule to parties who relied

on the old would offend basic notions of justice and fairness.

But this equitable method has its own drawback: it tends to

relax the force of precedent, by minimizing the costs of over-

ruling, and thereby allows the courts to act with a freedom

comparable to that of legislatures.

(Italics ours.) Beam Distilling, 115 L. Ed. 2d at 488-89. The

third choice of law approach, “selective prospectivity’,

ee

ee

35a

involves applying the new rule to the parties in the case

announcing the new rule, but otherwise to apply the new

rule prospectively:

Finaily, a court may apply a new rule in the case in which

it is pronounced, then return to the old one with respect to all

others arising on facts predating the pronouncement. This

method, which we may call modified, or selective, prospectivity.

enjoyed its temporary ascendancy in the criminal law during a

period in which the Court formulated new rules, prophy-

lactic or otherwise, to insure protection of the rights of the

accused... .

But selective prospectivity also breaches the principle that

litigants in similar situations should be treated the same, a

fundamental component of stare decisis and the rule of law

generally. ... For this reason, we abandoned the possibility of

selective prospectivity in the criminal context in Griffith v.

Kentucky, 479 US 314, 328, 93 L Ed 2d 649, 107 S Ct 708

(1987), even where the new rule constituted a “clear break”

with previous law, in favor of completely retroactive applica-

tion of all decisions to cases pending on direct review. Though

Griffith was held not to dispose of the matter of civil retroac-

tivity, see id., at 322, n 8, 93 L Ed 2d 649, 107 S Ct 708,

selective prospectivity appears never to have been endorsed in

the civil context.

(Citations omitted. Italics ours.) Beam Distilling, 115 L. Ed.

2d at 489-90.

After reviewing the three approaches to the choice of law

question, Justice Souter frames Beam Distilling as present-

ing one issue: whether the selective prospectivity approach,

no longer available in the criminal context, is available in

the civil cases. Beam Distilling, 115 L. Ed. 2d at 490. The

plurality in Beam Distilling holds that selective prospec-

tivity is not available in the civil context. The opinion con-

cludes that once the Supreme Court has applied a rule of

law to the litigants in one case, it must do so with respect to

all others not barred by procedural requirements or res

judicata: “Thus, the question is whether it is error to refuse

to apply a rule of federal law retroactively after the case

announcing the rule has already done so. We hold that it is,

principles of equality and stare decisis here prevailing over

j

36a

any claim based on a Chevron Oil analysis."’ Beam Distill-

ing, 115 L. Ed. 2d at 491.

Thus, the Supreme Court in Beam Distilling held that

since its decision in Bacchus did not reserve the question of

retroactive application and remanded the case for consider-

ation of remedial and refund issues, the Supreme Court was

itself later barred from denying retroactive application of

the Bacchus rule to other subsequent litigants whose causes

of action also arose prior to the Bacchus decision. This was

held in spite of the fact that, by all accounts, the Bacchus

decision clearly overruled existing past precedent.

Beam Distilling's limitation on Chevron Oil is not

implied, but express:

To this extent, our decision here does limit the possible appli-

cations of the Chevron Oil analysis, however irrelevant Chev-

ron Oil may otherwise be to this case. Because the rejection of

modified prospectivity precludes retroactive application of a

new rule to some litigants when it is not applied to others, the

Chevron Oil test cannot determine the choice of law by relying

on the equities of the particular case. . . . Once retroactive

application is chosen for any assertedly new rule, it is chosen

for all others who might seek its prospective application. The

applicability of rules of law are not to be switched on and off

according to individual hardship; allowing relitigation of

choice-of-law issues would only compound the challenge to the

stabilizing purpose of precedent posed in the first instance by

the very development of “new” rules.

(Italics ours.) Beam Distilling, 115 L. Ed. 2d at 493. The

Beam Distilling decision has effected a limitation on the

Chevron Oil analysis, which both parties in this case have

‘Justice Stevens joined in Justice Souter's opinion. Justice White concurred

in the judgment, but reasserted the validity of the “pure prospectivity” approach

he argued was called into question by Justice Souter's opinion. 115 L. Ed. 2d at

494-95. Justices Blackmun, Marshall and Scalia concurred in the judgment, but

favored abandonment of any prospectivity approach on constitutional grounds:

“Unhke a legislature, we do not promulgate new rules to ‘be applied prospec-

tively only, . . . We fulfill our judicial responsibility by requiring retroactive

application of each new rule we announce. . . . |Plrospectivity, whether selec-

tive or pure. breaches our obligation to discharge our constitutional function.”

115 L. Ed 2a at 496 (Blackmun, J., concurring). Justice O'Connor, joined by

Chief Justice Rehnquist and Justice Kennedy, dissented

37a

argued must be considered to the extent it was relied on in

our National Can decision.

To state it another way, under Beam Distilling, retroac-

tive application of a principle in a case announcing a new

rule precludes prospective application of the rule in any sub-

sequently raised suit based upon the new rule. Such selec-

tive, or “modified”, prospectivity would be unequal and

unmindful of stare decisis as it treats similarly situated

litigants unequally.” Beam Distilling, 115 L. Ed. 2d at 493.

We are persuaded that the Beam Distilling holding is

sound. While our decision in National Can relied in part on

the Chevron Oil analysis, we now modify our rule from

National Can in a manner consistent with the limitations

on the Chevron Oil rule effected in Beam Distilling. We

expressly limit our holding in this case to the abolishment

of selective prospectivity in the application of our state

appellate decisions.

C. Applying Beam Distilling to This Case.

In accordance with Beam Distilling, as we have noted,

ohce this court has applied a rule retroactively to the par-

ties in the case announcing a new rule, we will apply the

new rule to all others not barred by procedural require-

ments, such as the statute of limitation or res judicata. We

begin by recognizing that our decisions in San Telmo and

R/L Assocs. have established, while invalidating HPO provi-

sions, that the plaintiffs in those cases were entitled to the

benefit of those holdings. In R/L Assocs. v. Seattle, 113

“In announcing the decision of the court, Justice Souter's opinion states: "We

do not speculate as to the bounds or propriety of pure prospectivity”, thus

reserving the Court's opinion as to the validity of dispositions in which the

Court in making a new rule does not apply it to the litigants in the case

announcing the new rule. 115 L. Ed. 2d at 493. But apparently the Beam

Distilling decision has called into question the viability of any rules of prospec-

tive application under Chevron Oil Co. v. Huson, supra:

Justice Souter purports to have restricted the application of Chevron Oi!

only to a limited extent. The effects appear to me far greater... . The inquiry

the Court summarized in Chevron Oil represents longstanding doctrine on

the application of nonretroactivity to civil cases. Justice Souter today ignores

this well-established precedent, and sernously curtails the Chevron Oil

inquiry.

(Citations omitted.) 115 L. Ed. 2d at 499 (O'Connor, J., dissenting).

38a

Wn.2d 402, 780 P.2d 838 (1989), this court stated: "Because

we hold the tenant assistance provisions invalid, R/L is

entitled to a refund of the fees already paid to comply with

the provisions.” 113 Wn.2d at 411. Similarly, the plaintiffs

in San Telmo were relieved of the requirement of building

replacement housing or paying housing replacement fees.

The City incorrectly argues the refund in R/L Assocs. was

not retroactive, as the plaintiff R/L Associates had

challenged the fee and only paid into the court's registry to

continue its court action. 113 Wn.2d at 405. However, in

National Can, this court stated: “Whether the taxes had

been collected or still remained to be collected is not rele-

vant to the issue of retroactive application."” National Can,

109 Wn.2d at 891.

We have observed that this court's San Telmo and R/L

Assocs. decisions were applied to the parties in those

actions. The City argues that the San Telme and R/L

Assocs. decisions should not be applied to cases arising on

facts predating the pronouncement of those decisions, even

though those decisions were applied to the parties in those

cases. We may conclude then that the City is asking for this

“This rule for defining retroactivity is consistent with the distinctions drawn

in Beam Distilling between “pure” prospective application and “modified” or

“selective” application. “Pure” prospective application (not expressly eliminated

as an option by Beam Distilling) requires the new rule be applied “neither to

the parties in the law-making decision nor tothose others against or by whom it

might be applied to conduct or events occurring before that decision.” Beam

Distilling, 115 L. Ed. 2d at 488. On the other hand, “modified” or “selective”

prospectivity (expressly eliminated as an option in civil cases by Beam Distiil-

ing) is manifested when “a court {applies} a new rule in the case in which it is

pronounced, then return(s] to the old one with respect to all others arising on

facts predating the pronouncement.” Beam Distilling, 115 L. Ed. 2d at 489.

The assertion that the R/L Assocs. invalidation was not applied retroactively

because the plaintiff had challenged the fee and only paid into the court's

registry in order to continue its court action fails. According to the Beam

Distilling definition, the City cannot argue at this point for a purely prospective

application of the San Telmo and R/L Assocs. decisions because the rules

announced in those cases were applied to the parties in those law-making deci-

sions. The R/L Assocs. and San Telmo decisions were retroactively applied, as it

dues not matter that the parties in those cases had not actually paid fees to the

City before challenging the ordinances in question.

39a

court to apply those decisions in a selectively prospective

manner, an approach we decline to follow.

The City further contends it is unfair to grant refunds to

plaintiffs who paid fees, did not challenge the HPO, and

now sue based on the benefit of hard-fought battles won by

others. It argues that in this case, unlike the case in R/L

Assocs., no class member challenged the ordinance fees

and "[a]s far as the record shows, they paid their fees will-

ingly and went on to build successful projects.” Brief

of Respondent-Cross Appellant, at 45. Beam Distilling

addresses precisely this question of whether it is fair to

allow parties who have not challenged a tax or fee regime to

then, after an invalidation of a tax or fee, ride the coattails

of successful challengers into court and enjoy the fruits of

the labors of those who have struggled to defeat existing

laws:

[T]he petitioner now before us . . . did not challenge the Geor-

gia law until after its fellow liquor distributors had won their

battle in Bacchus. . . . Insofar as equality drives us, it might

be argued that the new rule . . . should not be applied to those

= only exploit others’ efforts by litigating in the new rule's

wake.

... As for the putative hangers-on, they are merely assert-

ing a right that the Court has told them is theirs in law, that

the Court has not deemed necessary to apply on a prospective

basis only, and that is not otherwise barred by state proce-

dural requirements. They cannot be characterized as freeload-

ers any more than those who seek vindication under a new

rule on facts arising after the rule's announcement. Those in

each class rely on the labors of the first successful litigant. We

might, of course, limit retroactive application to those who at

least tried to fight their own battles by litigating before vic-

tory. was certain. To this possibility, it is enough to say that

are a pes between those with cases pending and those

without would only serve to encourage the filing of replicative

suits when this or any other appellate court created the possi-

bility of a new rule by taking a case for review.

(Citations omitted.) Beam Distilling, 115 L. Ed. 2d at

492-93. We agree.

We hold that refunds were properly available in this case,

pursuant to an alternative theory of relief independent of a

civil rights action, as the decisions of this court in San

40a

Telmo and R/L Assocs. were properly applied retroactively.

The practice of retroactive application is “overwhelmingly

the norm”. Beam Distilling, 115 L. Ed. 2d at 488. Further-

more, under the Beam Distilling holding which we adopt,

there is no balancing the equities to determine whether we

should now apply rules which were applied retroactively in

the San Telmo and R/L Assocs. decisions prospectively to

the parties in this case:

Nor, finally, are litigants to be distinguished for choice-of

law purposes on the particular equities of their claims to

prospectivity: whether they actually relied on the old rule and

how they would suffer from retroactive application of the new.

It is simply in the nature of precedent, as a necessary compo-

nent of any system that aspires to fairness and equality, that

the substantive law will not shift and spring on such a basis.

To this extent, our decision here does limit the possible appli-

cations of the Chevron Oil analysis . . . Because the rejection

of modified prospectivity precludes retroactive application of a

new rule to some litigants when it is not applied to others, the

Chevron Oil test cannot determine the choice of law by relying

on the equities of the particular case.

Beam Distilling, 115 L. Ed. 2d at 493. We accordingly affirm

the trial court award of refunds.

As to any property owners who may be present in the

class who paid HPO fees pursuant to ordinance provisions

prior to the invalidation of those provisions, such plaintiffs’

remedies lie solely in refund relief, since there will be no

initial showing of arbitrary and capricious conduct neces-

sary for a section 1983 action. The right to refund relief is

subject to the statute of limitation for refund actions, dis-

cussed below. By contrast, property owners who were

assessed fees after trial court invalidation of applicable

ordinance provisions may pursue damages remedies under

section 1983, subject to the applicable limitations period for

such actions in Washington.

Applicable Statute of Limitation

In determining the applicable statute of limitation for

this case, we address the proper limitations period not only

for the trial court's grant of HPO payment refunds under

4la

RCW 4.16.080(3), but also to what extent such considera-

tions impact the Robinsons’ section 1983 claims.

The trial court in this case imposed a 3-year statute of

limitation on the Robinsons’ class claims, meaning that all

class claims arising more than 3 years prior to the date the

action was filed, May 1988, were time barred.

The Robinsons argue that no statute of limitation applies

to their claims for compensation because it is an inverse

condemnation action and that actions against the govern-

ment for the taking or damaging of property are not time

barred. They submit the trial court erred when it applied a

3-year limitation period by characterizing their claims as a

refund action for invalidly imposed taxes or charges in reli-

ance on Hart v. Clark Cy., 52 Wn. App. 113, 758 P.2d 515

(1988). Alternatively, they argue that the 6-year statute of

limitation, available in actions for lost rents and profits for

the use and occupation of real estate, would be “preferable”.

Furthermore, argue the Robinsons, the City ought to be

equitably estopped from asserting a statute of limitation

defense at all.

A. Equitable Estoppel Rejected.

We address first the Robinsons’ equitable estoppel argu-

ment as it attacks the ability of the City to even assert the

defense. The Robinsons rely on a statement in Hart v. Clark

Cy., supra, that the County in that case collected its fees in

good faith and thus was not estopped from asserting the

statute of limitation. By contrast, the Robinsons argue, in

this case the City knew the HPO was invalid and therefore

should be estopped. The Hart court noted that estoppel is

available to prevent a defendant from raising a statute of

limitation defense where the defendant has fraudulently or

inequitably invited a plaintiff to forebear from commencing

suit until the applicable statute of limitation has run, bar-

ring the plaintiffs action. Hart, at 119. The court in Hart

did not apply the estoppel doctrine, however, because the

~ requisite showing was not made. Nor have the Robinsons

made the required showing in this case.

42a

{29, 30] Equitable estoppel is not favored, and the party

asserting estoppel must prove each of its elements by clear,

cogent, and convincing evidence. Mercer v. State, 48 Wn.

App. 496, 500, 739 P.2d 703, review denied, 108 Wn.2d 1037

(1987). The elements to be proved are: first, an admission,

statement, or act inconsistent with a claim afterward

asserted; second, action by another in reasonable reliance

on that act, statement, or admission; and third, injury to

the party who relied if the court allows the first party to

contradict or repudiate the prior act, statement, or admis-

sion. Board of Regents of UW v. Seattle, 108 Wn.2d 545,

551, 741 P.2d 11 (1987). Estoppel is appropriate to prohibit

a defendant from raising a statute of limitations defense

when a defendant has “fraudulently or inequitably invited a

plaintiff to delay commencing suit until the applicable sta-

tute of limitation has expired." Del Guzzi Constr. Co. v.

Global Northwest Ltd., 105 Wn.2d 878, 885, 719 P.2d 120

(1986). The Robinsons do not argue or show that the City or

any of its officials in any way invited any member of the

Robinsons’ class to delay filing suit. The existence of earlier

decisions in this court upholding lower court challenges to

the HPO bears testament to the fact that while the Robin-

sons and their class relented, others did bring suit. Because

the City did nothing to induce delay in the filing of this

action, we reject the plaintiffs’ equitable estoppel argument.

B. 6-Year Limitation Period -Inapplicable.

The Robinsons alternatively contend the 6-year statute of

limitation period which governs actions "for the rents and

profits or for the use and occupation of real estate" under

RCW 4.16.040(3) is “preferable”. This statute's limitation

period is not applicable. The HPO requirement that owners

replace housing or pay into the housing replacement fund

cannot be equated with a dispute over rents or profits or the

occupation of land; furthermore, the Robinsons cite no

authority which would compel such an equation. We there-

‘fore reject the Robinsons’ suggested statute of limitation

preference.

43a

C. RCW 4.16.080(3) Applicable to Refunds.

[31] While the trial court's order does not expressly cite

the basis for the court's conclusion that a 3-year limitation

period is applicable, both parties appear to agree that the

trial court relied upon Hart v. Clark Cy., 52 Wn. App. 113,

758 P.2d 515 (1988). In Hart, the 3-year limitation period of

RCW 4.16.080(3) was applied to an action for refund of

money paid pursuant to a county ordinance, later held to

impose an invalid tax, which required park development

fees. Following this court's decision in Hillis Homes, Inc. v.

Snohomish Cy., 97 Wn.2d 804, 650 P2d 193 (1982), the

County in Hart ceased imposing the fees and the plaintiffs

filed suit. By affirming the trial court's application of the

3-year statute of limitation, the Court of Appeals in Hart

barred the majority of the plaintiffs’ claims. The court

characterized the action as one based partly on an implied

liability to repay money unlawfully received, and partly

upon a theory of unjust enrichment, both theories subject to

application of a 3-year statute. Hart, 52 Wn. App. at 116,

118. RCW 4.16.080(3) limits actions to 3 years for "an action

upon a contract or liability, express or implied, which is not

in writing, and does not arise out of any written instru-

ment”. (Italics ours.)

The court in Hart relied on decisions in which this court

had applied the 3-year limitation period to refund actions

for invalid taxes:

The Washington Supreme Court has applied RCW

4.16.080(3) to refund actions for invalid taxes. In Corwin Inu.

Co. v. White, 166 Wash. 195, 6 P2d 607 (1932), the court

stated that “[a)n action against a county to recover void taxes

is one which arises upon an implied contract, not in writing,

and the three-year statute of limitations applies." . . . The

underlying principle for the application of the 3-year statute of

limitations is that suits seeking tax refunds “are actions aris-

ing out of implied liabilities to repay money unlawfully

received .. .” ms Cy. v. Ritzville State Bank, 154 Wash.

140, 144, 281 P. 332 (1929).

In the present case, the trial court properly applied the

3-year statute of limitations. The Supreme Court in Hillis

Homes ruled that the fees imposed upon residential develop-

ments constitute taxes for which there had been no express

44a

grant of authority by the State Legislature. Therefore, these

fees are “without authority and invalid.” Hillis Homes, 97

Wn.2d at 808.

Hart, 52 Wn. App. at 115-16. We observe that in the Brief of

Appellants, at 21, it is stated: "Here the City is improperly

holding fees involuntarily paid under an invalid ordinance

for real property development”. This characterization of the

Robinsons’ demand for recovery is entirely consistent with

the theory in Hart. Accordingly, we hold that to the extent

relief is available to the plaintiffs on a basis other than the

federal statutory civil rights relief of section 1983 (i.e., if the

plaintiffs are unsuccessful in their section 1983 action or

seek refunds for payments made prior to declarations of

ordinance invalidity), the 3-year statute of limitation of

RCW 4.16.080(3) properly applies to the Robinsons’ claims.

D. Inverse Condemnation Claims.

The Robinsons contend their action does not merely

involve collection of invalid taxes or fees, but also interfer-

ence with the use and enjoyment of property. They claim

Hart does not apply, or should be limited or overruled,

because governmental taking or damaging of property is of

constitutional magnitude, so that mere passage of time can-

not bar such a claim. In support of this contention they cite

Petersen v. Port of Seattle, 94 Wn.2d 479, 618 P.2d 67 (1980)

and Highline Sch. Dist. 401 v. Port of Seattle, 87 Wn.2d 6,

548 P2d 1085 (1976). In those cases plaintiffs brought

inverse condemnation actions against the Port of Seattle

seeking compensation for increased noise at Seattle-Tacoma

International Airport. This court held the claims were not

subject to any time bar save the 10-year period for prescrip-

tive mght acquisition. Petersen, at 483; Highline Sch. Dist.,

at 11. We have already concluded that this action is not one

in inverse condemnation, as no taking has been established

under this court's rule in Presbytery. Therefore, we do not

engage in the analysis offered in reliance upon the Petersen

and Highline Sch. Dist. cases.

In analyzing the Robinsons’ secticn 1983 substantive due

process claim, we have concluded that to the extent they

45a

can show that the continued enforcement of respective HPO

provisions (after trial court declarations of invalidity and

injunctions against continued enforcement) was arbitrary

and capricious, the Robinsons can maintain a federal cause

of action under 42 U.S.C. § 1983. We must therefore

address the applicable limitation period for the Robinsons’

claims to federal relief for violations of substantive due

process.

E. Limitation Period for Section 1983 Claims.

[32] The Robinsons stated a prima facie case for civil

rights relief for their claims of substantive due process vio-

lations. Since these claims were improperly dismissed and

may now be set for trial, the Robinsons have a valid theory

of relief other than "an action upon a contract or liability,

express or implied, which is not in writing, and does not

arise out of any written instrument” under RCW 4.16-

.080(3). We therefore seek the applicable limitation period

for what may stand as an independent theory of relief, i.e.,

the Robinsons’ substantive due process claims under section

1983. We note that damages, if awarded, could differ in

amount from refunds. Because there is no statute of limita-

tion for section 1983 actions, federal courts formerly used

the state statute of limitation applicable to a similar cause

of action under the law of the State in which the action

arose, as provided in Board of Regents v. Tomanio, 446 U.S.

478, 483-84, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980). This

rule was changed by the Supreme Court in Wilson v. Gar-

cia, 471 U.S. 261, 276, 85 L. Ed. 2d 254, 105 S. Ct. 1938

(1985), in which it was held that the appropriate statute of

limitation for section 1983 actions is the same as the forum

state's limitations period for personal injury cases. See Krug

v. Imbordino, 896 F.2d 395 (9th Cir. 1990). Thus federal

precedent under the Wilson v. Garcia, supra, rule requires

the use of a single limitation period for section 1983 actions

in each state. The Supreme Court has stated that courts

entertaining section 1983 actions may in certain instances

employ the general or residual state statute of limitation for

personal injury actions. Owens v. Okure, 488 U.S.

46a

235, 249-50, 102 L. Ed. 2d 594, 109 S. Ct. 573 (1989).

However, this is only when state law provides multiple

statutes of limitation for personal injury actions:

Courts should resort to residual statutes of limitations only

where state law provides multiple statutes of limitations for

personal injury actions and the residual one embraces, either

explicitly or by judicial construction, unspecified personal

injury actions.

Owens v. Okure, 488 U.S. at 250 n.12. See 1 S. Steinglass,

Section 1983 Litigation in State Courts § 6.6(d) (Release 2

1989); see also Kibble-Smith, Statutes of Limitation and Sec-

tion 1983: Implications for Illinois Civil Rights Law, 20 J.

Mar. L. Rev. 415 (1986-1987).

The statute of limitation for personal injury actions in the

state of Washington is 3 years under RCW 4.16.080(2). This

3-year period was held applicable to Bivens claims, Bivens v.

Six Unknown Named Agents of Fed. Bur. of Narcotics, 403

U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), arising in

the state of Washington in Johnston v. Horne, 875 F.2d 1415

(9th Cir. 1989). Thus the 3-year limitation period for per-

sonal injuries under Washington law applies to this section

1983 action.

1. Accrual of Cause of Action.

[33] The next question to be addressed is when the

Robinsons’ substantive due process cause of action (in this

instance, a class suit) accrued. While state law requires the

use of state policies on tolling and revival of statutes of

limitation, federal law controls the question of when a cause

of action accrues when we discuss statutes of limitation for

section 1983 purposes. Norco Constr., Inc. v. King. Cy., 801

F.2d 1143, 1145 (9th Cir. 1986). See also 1 S. Steinglass, at

6-37; Chardon v. Fernandez, 454 U.S. 6, 8, 70 L. Ed. 2d 6,

102 S. Ct. 28 (1981) (section 1983 claim accrued when a

plaintiff knew or should have known of the injury that was

basis of suit). In Norco Constr., it was held that a

developer's civil rights action against King County based on

the County's delay in acting on the developer's preliminary

plat application accrued when the County made its final

47a

decision approving the application rather than when the

developer became aware the County had treated it differ-

ently and would not act within the period provided by sta-

tute.

We note that in the land use context, it has been

observed that other land use claims may be stated indepen-

dent of a taking claim, and it is possible for section 1983

due process or other nontaking claims to accrue earlier than

taking claims; taking claims entail more stringent ripeness

requirements.” S. Steinglass, at 6-39. There has been con-

siderable controversy on whether the ripeness requirements

for takings claims announced in Williamson Cy. Regional

Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 87 L.

Ed. 2d 126, 105 S. Ct. 3108 (1985) and MacDonald, Sommer

& Frates v. County of Yolo, 477 U.S. 340, 91 L. Ed. 2d 285,

106 S. Ct. 2561 (1986) are applicable as an impediment to

related, nontaking claims on the grounds that such claims

have not yet accrued until taking claims are npe. William-

son held that a Fifth Amendment taking claim is not ripe

(and thus a cause of action does not accrue) until the lan-

downer has sought and received a final judgment on state

compensation procedures. Williamson, 473 U.S. at 194-95.

However, the Ninth Circuit has held that the Williamson

requirement that a federal takings plaintiff exhaust his or

her state law remedies prior to bringing a claim did not

extend to the plaintiffs claims that he or she had been

denied due process by the same state action. Sinaloa Lk.

Owners Ass'n v. Simi Vly., 882 F.2d 1398, 1404-05 (9th Cir.

“The application of [the] federal accrual policy to §1983 land use litigation

depends upon the nature of the claim being advanced. For example, in a §1983

inverse condemnation [i.e., taking] action a property owner is challenging not

simply the regulatory taking but also the failure of the governmental entity to

provide just compensation. Thus, in McMillan v. Goleta Water District (792 F.2d

1453 (9th Cir. 1986), cert. denied, 480 U.S. 906 (1987)], the Ninth Circuit relied

on the ripeness requirement applied by the Supreme Court in taking claims to

conclude that the $1983 taking claim did not accrue either when the Water

District imposed a moratorium on new water connections (and thus interrupted

the property owners’ water service) or when it became clear that the interrup-

tion was not temporary. Rather, the action accrued almost ten years later when

the Water District denied the property owners formal application for an excep-

tion to the moratorium.” (Footnotes omitted.) 1 S. Steinglass, at 6-38.

48a

1989), cert. denied sub nom. Doody v. Sinaloa Lk. Owners

Ass'n, Inc. 494 U.S. 1016, 108 L. Ed. 2d 493, 110 S. Ct. 1317

(1990). In Sinaloa, the Ninth Circuit concluded that lan-

downers’ substantive due process claims arising out of the

State's breaching of a privately owned dam and destruction

of a lake was ripe, notwithstanding the fact that the land-

owners failure to exhaust state law remedies had precluded

their federal taking claims. Sinaloa, 882 F.2d at 1407. The

Sinaloa decision was cited as consistent with the Ninth

Circuit's decision in Kaiser Dev. Co. v. Honolulu, 898 F.2d

112, 113 (9th Cir. 1990). The Kaiser decision relied totally

on the reasoning from Kaiser Dev. Co. v. City & Cy. of

Honolulu, 649 F. Supp. 926 (D. Hawaii 1986), in which it

was noted that the Williamson and Yolo concepts of ripeness

and exhaustion do not preclude a plaintiff's claim that

arbitrary and capricious state action violated substantive

due process. 649 F. Supp. at 943 n.24.

[34] Substantive due process claims differ from taking

claims in that the plaintiff who has suffered a violation

need not wait for the State to deny an adequate postdepri-

vation remedy before commencing suit. Substantive due

process is violated at the moment harm occurs; thus, the

existence of postdeprivation state remedies does not bar a

section 1983 action. Bateson v. Geisse, 857 F.2d 1300, 1303

(9th Cir. 1988) (citing Rutherford v. Berkeley, 780 F.2d 1444,

1447 (9th Cir. 1986)).

2. Continuing Wrong Theory Inapplicable.

It is also noted in commentary that some federal courts

have considered tolling the running of, or delaying the

accrual of, the statute of limitation in section 1983 land use

actions under the “continuing wrong” theory. See 1 S. Stein-

glass, § 6.6(d) (citing Ocean Acres Ltd. Partnership v. Dare

Cy. Bd. of Health, 707 F.2d 103, 106 (4th Cir. 1983); Gordon

v. Warren, 579 F.2d 386, 391 (6th Cir. 1978); De Botton v.

Marple Township, 689 F. Supp. 477, 480 (E.D. Pa. 1988);

Moore v. Costa Mesa, 678 F. Supp. 1448, 1449 (C.D. Cal.

1987); Jackson v. City Coun., 659 F. Supp. 470, 474-75 (W.D.

Va. 1987), affd in part, vacated in part on other grounds,

49a

840 F.2d 10 (4th Cir. 1988)). There is a split among junsdic-

tions as to the function and availability of the continuing

wrong theory.

[35] However, the Ninth Circuit has rejected this theory

in the regulatory taking and land use context. See Azul

Pacifico, Inc. v. Los Angeles, 948 F.2d 575, 584 (9th Cir.

1991); De Anza Properties X, Ltd. v. County of Santa Cruz,

936 F.2d 1084, 1087 (9th Cir. 1991). Since the Ninth Circuit

has not embraced the continuing wrong theory, it is not

available in this case.

The policy behind statutes of limitation is to ensure

essential fairness to defendants and to bar plaintiffs who

have “slept on [their] rights.” Burnett v. New York Cent.

R.R., 380 U.S. 424, 428, 13 L. Ed. 2d 941, 85 S. Ct. 1050

(1965). The plaintiffs in this case did not bring state actions

prior to raising their federal claims so as to toll the statute

of limitation during the pendency of their state court

proceedings. The nature of the wrongful conduct alleged in

this section 1983 action is the enforcement of respective

HPO provisions after trial courts had declared them invalid

and issued injunctions against continued enforcement. Inso-

far as the section 1983 claim is concerned, the federal sub-

stantive due process rights of the respective class members,

if violated, were violated at the instant this improper

enforcement came to bear upon each of them. We are there-

fore not persuaded that this case presents a “continuing

wrong’ vis-a-vis the respective class members.

In this case the respective class members’ section 1983

causes of action accrued (i.¢., substantive due process was

violated by allegedly arbitrary and capricious conduct) when

they were assessed fees by the City pursuant to the HPO,

as a requirement for obtaining a license, after the applicable

provisions of the ordinance had been declared invalid by

trial courts and further enforcement had been enjoined.

[36] We hold that the moment of imposition of fees pur-

suant to invalidated HPO provisions by the City against

each of the respective class members as a condition of

removing low income housing gave each respective class

|

|

{a ‘

50a

member a basis for asserting a section 1983 substantive due

process claim against the City. The 3-year statute of limita-

tion began running on each of these respective claims at the

moment of fee imposition, which was the moment the

respective causes accrued.

We accordingly hold that since the 3-year statute of limi-

tation applies, all section 1983 claims by class members

which arose prior to the period of 3 years before May 27,

1988, the date of the filing of the complaint, are time

barred.

Attorney Fees

Due to the fact that the dismissal of the Robinsons’ action

under section 1983 has been reversed and the cause may

proceed to trial, it is not necessary at this time to address

the issue of attorney fees.

CONCLUSION

We remand this case to the trial court for determination

of the liability of individual defendants and the liability of

the City of Seattle under the plaintiffs’ section 1983 sub-

stantive due process claims, and to decide to what degree

civil rights damages, if awarded, would differ or exceed

refunds validly awarded the Robinsons. The question of

attorney fees must await the settlement, or the outcome, of

the reinstated civil mghts action.

Dore, C.J., and UTrerR, BRACHTENBACH, DOLLIVER, ANDER-

SEN, DURHAM, SMITH, and JOHNSON, JJ., concur.

5la

THE SUPREME COURT OF WASHINGTON

NO. 57038-8

ROY W. and KATHLEEN ROBINSON, husband and wife,

individually and as partners d/b/a COMPUTER SLIDE

COMPANY and the class of persons and entities

similarly situated,

Appellants,

¥.

THE CITY OF SEATTLE, a municipal corporation,

Respondent,

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.

[Filed February 4, 1991]

ORDER

This matter came before Department One of this court for

preliminary consideration on February 4, 1991.

IT IS HEREBY ORDERED:

(1) The appeal will be retained for rehearing on the merits

by this court;

(2) The related appeal now pending in Division One of

the Court of Appeals under cause No. 24177-0 is transferred

to this court and consolidated with this case;

a

CRI wT

52a

(3) The case will be scheduled for oral argument as a

companion to Sintra, Inc., et al. v. Seattle, et al., cause No.

57029-9, on a date to be set later.

February 4, 1991 /s/ Fred Dore

CHIEF JUSTICE

53a

IN THE SUPERIOR COURT OF THE STATE

OF WASHINGTON FOR KING COUNTY

CLASS ACTION

NO. 88-2-09850-6

ROY W. and KATHLEEN ROBINSON, husband and wife,

individually and as partners d/b/a COMPUTER SLIDE

COMPANY and that class of persons and entities similarly

situated,

Plaintiffs,

VS.

THE CITY OF SEATTLE, a municipal corporation,

WILLIAM JUSTEN and JANE DOE JUSTEN, his wife,

BEATRICE RYAN and JOHN DOE RYAN, her husband,

HOLLY MILLER and JOHN GAYMAN, her husband,

OVID THOMPSON, a single person,

Defendants.

NOTICE OF APPEAL TO STATE SUPREME COURT

Roy W. and Kathleen Robinson husband and wife, indi-

vidually and as partners d/b/a Computer Slide Company and

that class of persons and entities similarly situated,

plaintiffs, seek review by the Supreme Court of the State

of Washington of the Final Judgment that was entered on

February 28, 1990 as well as the Order Denying Attorney

Fees entered on March 21, 1990 by the trial court.

DATED: March 22, 1990.

ATTORNEY FOR DEFENDANTS /s/ Richard B. Sanders

SANDRA M. WATSON RICHARD B. SANDERS

Assistant City Attorney Attorney for Plaintiffs

10th Floor Municipal Bldg. WSBA No. 2813

600 - 4th Avenue

Seattle, WA 98104

(206) 684-8200

a ee

54a

IN THE SUPERIOR COURT OF THE

STATE OF WASHINGTON

FOR KING COUNTY

CLASS ACTION

NO. 88-2-09850-6

ROY W. and KATHLEEN ROBINSON, husband and wife,

individually and as partners d/b/a COMPUTER SLIDE

COMPANY and that class of persons and entities similarly

situated,

Plaintiffs,

vs.

THE CITY OF SEATTLE, a municipal corporation,

WILLIAM JUSTEN and JANE DOE JUSTEN, his wife,

BEATRICE RYAN and JOHN DOE RYAN, her husband,

HOLLY MILLER and JOHN GAYMAN, her husband,

OVID THOMPSON, a single person,

Defendants.

NOTICE OF APPEAL TO STATE SUPREME COURT

The City of Seattle, defendant, seeks review by the

Supreme Court of the State of Washington of the final

judgment entered on February 28, 1990.

DATED this 9th day of April, 1990.

ATTORNEY FOR PLAINTIFFS MARK H. SIDRAN

RICHARD B. SANDERS City Attorney

4122 -128th Avenue Southeast By /s/ Sandra M. Watson

Suite 301 SANDRA M. WATSON,

Bellevue, WA 98006 WSBA #12874

(206) 746-3790 Assistant City Attorney

Attorneys for Defendants

55a

IN THE SUPERIOR COURT OF THE

STATE OF WASHINGTON

FOR KING COUNTY

CLASS ACTION

NO. 88-2-09850-6

FINAL JUDGMENT

(Clerk’s Action Required)

ROY W. and KATHLEEN ROBINSON, husband and wife,

individually and as partners d/b/a COMPUTER SLIDE

COMPANY and that class of persons and entities similarly

situated,

Plaintiffs,

vs.

THE CITY OF SEATTLE, a municipal corporation,

WILLIAM JUSTEN and JANE DOE JUSTEN, his wife,

BEATRICE RYAN and JOHN DOE RYAN, her husband,

HOLLY MILLER and JOHN GAYMAN, her husband,

OVID THOMPSON, a single person,

Defendants.

[Filed February 28, 1990]

JUDGMENT SUMMARY

1. Judgment Roy W. and Kathleen Robinson, hus-

Creditors: band and wife, individually and as part-

ners d/b/a COMPUTER - SLIDE

COMPANY and that class of persons and

entities similarly situated.

2. Judge Debtor: The City of Seattle, a municipal cor-

poration.

3. Principal Judgment Amount: $ 430,271.47

4. Attorney Fees: $ 125.00

5. Costs: $ To be taxed

6. Other Recovery Amounts: $ None

7. Principal Judgment Amount and Attorney Fees Shall

Bear Interest at 12% per annum.

8. Costs Shall Bear Interest at 12% per annum from the

date of taxation.

9. Attorney for Judgment Creditors: RICHARD B. SANDERS

The undersigned Judge of the above-entitled court being

fully apprised of the premises herein, finding that all re-

maining factual issues have been resolved by stipulation en-

tered February 28, 1990 and further finding that entry of

final judgment is now appropriate this court does now

ORDER, ADJUDGE AND DECREE that plaintiff class should

be and hereby is awarded judgment against defendant City

of Seattle, a municipal corporation, in the amount of

$430,271.47 inclusive of principal and interest calculated in

accordance with the stipulation of the parties entered Feb-

ruary 28, 1990 1990, plus statutory attorney fees, and costs

to be taxed.

DONE IN OPEN COURT this 28 day of February, 1990.

Presented by: /s/ Marsha J. Pechman

/s/ Sandra M. Watson JUDGE

SANDRA M. WATSON

Assistant City Attorney

Attorney for Defendants

WSBA No. 12874

Approved for Entry, Notice

of Presentation Waived:

/s/ Richard B. Sanders

RICHARD B. SANDERS

Attorney for Plaintiff Class

WSBA No. 2813

57a

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON FOR KING COUNTY

CLASS ACTION

NO. 88-2-09850-6

ROY W. and KATHLEEN ROBINSON, husband and wife,

individually and as partners d/b/a COMPUTER SLIDE

COMPANY and that class of persons and entities similarly

situated,

Plaintiffs,

VS.

THE CITY OF SEATTLE, a municipal corporation,

WILLIAM JUSTEN and JANE DOE JUSTEN, his wife,

BEATRICE RYAN and JOHN DOE RYAN, her husband,

HOLLY MILLER and JOHN GAYMAN, her husband, OVID

THOMPSON, a single person,

Defendants.

[Filed January 30, 1990]

PARTIAL SUMMARY JUDGMENT

The undersigned Judge of the above-entitled court heard

plaintiffs’ motion for partial summary judgment on this date.

With respect thereto this court considered the following

pleadings:

1. Discovery Declaration of Richard B. Sanders;

2. Plaintiffs’ First Request for Admissions and Amended

Answers Thereto,

3. Plaintiffs’ Second Request for Admissions and

Amended Answers Thereto;

4. Declaration of William Courtney;

This motion.

our

58a

6. Affidavits of Watson, Hepfer, Kipp and attachments;

7. Cross motion of Seattle and memorandum

8. Reply of Plaintiffs

WHEREFORE this court does now

ORDER, ADJUDGE AND DECREE as follows:

1. This court determines as a matter of law that the 3

year statute of limitations applies to plaintiffs’ claims from

date of payment.

2. Plaintiff class is awarded partial summary judgment

against defendant City of Seattle for those sums itemized

in William Courtney’s declaration and in column (e) of the

exhibits attached to plaintiffs’ first and second requests for

admissions, provided (1) those sums are not specifically de-

nied in defendants’ amended answers to plaintiffs’ first re-

quest for admissions and answers to plaintiffs’ second

request for admissions and (2) the dates of payment thereof,

as reflected in column (c) of the attached exhibits, are not

barred by the statute of limitations.

3. Plaintiffs are further granted partial summary judg-

ment against defendants for statutory interest on those

sums referenced above from respective dates of payment

at 12% per annum.

4. Plaintiffs are denied their reasonable attorney fees

against defendant City of Seattle under 42 USC 1983 and

RCW 64.40 and RCW 8.25.075 (at this time); provided that

such award may be subsequent considered under RCW

8.25.075.

DONE IN OPEN COURT this 30 day of January, 1990.

Marsha J. Pechman

JUDGE

Presented By:

/s/ Richard B. Sanders

RICHARD B. SANDERS

Attorney for Plaintiff Class

59a

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON FOR KING COUNTY

NO. 88-2-09850-6

ROY W. and KATHLEEN ROBINSON, husband and wife,

et al.,

Plaintiffs,

VS.

THE CITY OF SEATTLE, a municipal corporation, et al..

Defendants.

[Filed May 1, 1989]

ORDER GRANTING PARTIAL SUMMARY JUDGMENT

DISMISSING § 1983 LIABILITY

THIS MATTER came on for hearing on Defendant’s Mo-

tion for Partial Summary Judgment to dismiss plaintiffs’

claims of liability under 42 U.S.C. § 1983 against the

defendants and plaintiffs’ Motion for Partial Summary Judg-

ment Establishing Section 1983 Liability.

The Court considered the pleadings listed below:

1. Complaint for Money Damages, Civil Rights Violation

and Class Action;

2. Answer;

3. Order Certifying Class:

4. Defendants’ Response to Cross-Motion for Partial

Summary Judgmeni:

o. Affidavit of Michael P. Monroe in Support of

Defendants’ Cross-Motion:

60a

6. Defendants’ Memorandum of Authorities in Response

to Cross-Motion;

7. Defendants’ Rebuttal Memorandum;

8. Statement of Additional Authorities;

9. Plaintiffs’ Motion for Partial Summary Judgment Es-

tablishing Seattle’s § 1983 Liability;

10. Amicus Curiae Brief of Pacific Legal Foundation in

Support of Respondent, R/L Associates, Inc.;

11. Various Orders Granting Motion for Summary Jindg-

ment Declaratory Judgment and Injuncture Relief and

other relief in King county Cause Nos: 83-2-06176-8;

85-2-13092-8; 85-2-08121-8; 86-2-20459-8; 85-2-07764-

4; 86-2-20459-8; and

12. Plaintiffs’ Reply on Section 1983 Liability of City.

THIS COURT considered the oral argument of counsel and

the pleadings and finds that there is no issue of material

fact in dispute and that, as a matter of law, judgment

should be entered in favor of the defendant dismissing the

claims of liability premised upon 42 U.S.C. § 1983; Now,

Therefore, it is

ORDERED that Defendant is hereby awarded Partial

Summary Judgment against plaintiff class members; it is

further

ORDERED that all claims of liability against defendant

premised upon 42 U.S.C. § 1983 are hereby dismissed.

DONE IN OPEN COURT this 1 day of May , 1989.

/s/ Marsha J. Pechman

JUDGE MARSHA PECHMAN

Presented by:

DOUGLAS N. JEWETT

City Attorney

By /s/ Michael P. Monroe

MICHAEL P. MONROE

6la

By

ROBERT C. WILLIAMS

Attorneys for Defendants

Copy Received

By /s/ Richard B. Sanders

RICHARD B. SANDERS

By

SALLY SAXON

Attorneys for Plaintiffs

62a

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON FOR KING COUNTY

CLASS ACTION

NO. 88-2-09850-6

ROY W. and KATHLEEN ROBINSON, husband and wife,

individually and as partners d/b/a COMPUTER SLIDE

COMPANY and that class of persons and entities similarly

situated,

Plaintiffs,

VS.

THE CITY OF SEATTLE, a municipal corporation,

WILLIAM JUSTEN and JANE DOE JUSTEN, his wife,

BEATRICE RYAN and JOHN DOE RYAN, her husband,

MOLLY MILLER and JOHN GAYMAN, her husband, OVID

THOMPSON, a single person,

Defendants.

[Filed March 30, 1989]

ORDER GRANTING PARTIAL SUMMARY JUDGMENT

THIS MATTER came on for hearing on Defendants’ Mo-

tion for Partial Summary Judgment to dismiss plaintiffs’

claims of personal liability against William and Jane Doe

Justen, Beatrice and John Doe Ryan, Holly Miller and John

Gayman, and their marital communities, and Ovid Thomp-

son, a single person; and to dismiss the claim of punitive

damages against said defendants and the defendant, The

City of Seattle.

The Court considered the pleadings listed below:

63a

1. Complaint for Money Damages, Civil Rights Violation

and Class Action;

Answer;

Order Certifying Class;

Motion for Partial Summary Judgment;

Affidavit of William Justen;

Affidavit of Laura Gilbert;

Affidavit of Holly Miller;

Affidavit of Ovid Thompson;

Defendants’ Memorandum of Authorities;

ors fr FY

—

as

Declaration of Richard B. Sanders on Discovery Doc-

uments;

. Motion to Strike Affidavits;

—

| ol

. Plaintiffs’ Memorandum of Authorities;

—

ie)

. Supplement to Plaintiffs’ Brief;

—"

—

. Plaintiffs’ Response and Cross-Motion for Summary

Judgment;

. Motion to Strike Affidavit of James E. Fearn, Jr.;

. Defendants’ Rebuttal Memorandum;

. Affidavit of Michael P. Monroe (dated March 13,

1989);

18. Affidavit of James E. Fearn, Jr.

— dt pt

I OM ow

THIS COURT considered the oral argument of counsel and

the pleadings and finds that there is no issue of material

fact in dispute and that as a matter of law judgment should

be entered in favor of the Defendants dismissing the claims

of personal liability against William and Jane Doe Justen,

Beatrice and John Doe Ryan, Holly Miller and John Gay-

man, and Ovid Thompson because these defendants did not

violate any clearly established federal rights of the members

of the class through the enforcement of either of the Hous-

Diclicaiiiiiade ata arena iene

64a

ing Preservation Ordinances (Nos. 109124 and 112342, as

amended); and dismissing the claim of punitive damages

against all of the aforementioned defendants and The City

of Seattle; and the Court expressly finding that there is no

just reason for delay, Now, Therefore, it is

ORDERED that Plaintiffs’ Motion to Strike Affidavits and

Motion to Strike the Affidavit of James E. Fearn, Jr. are

hereby denied; it is further

ORDERED that Defendants are hereby awarded partial

Summary Judgment against plaintiff class members; it is

further

ORDERED that all claims of personal liability against

defendants William and Jane Doe Justen, Beatrice and John

Doe Ryan, Holly Miller and John Gayman, and their marital

communities, and Ovid Thompson, a single person, are here-

by Dismissed; it is further

ORDERED that William and Jane Doe Justen, Beatrice

and John Doe Ryan, Holly Miller and John Gayman, and

their marital communities, and Ovid Thompson, a single

person, are hereby Dismissed from the claims of this law-

suit; and it is further

ORDERED that all claims of punitive damages against

the aforementioned defendants and the defendant The City

of Seattle, are hereby Dismissed; and it is further

ORDERED that this Judgment should be entered forth-

with pursuant to CR 54(b).

DONE IN OPEN COURT this 30 day of March, 1989.

/s/ Marsha J. Pechman

JUDGE MARSHA PECHMAN

Presented by:

DOUGLAS N. JEWETT

City Attorney

By /s/ Michael P. Monroe

MICHAEL P. MONROE

65a

By

ROBERT C. WILLIAMS

Attorneys for Defendants

Copy Received

By /s/ Richard B. Sanders

RICHARD B. SANDERS

By

SALLY SAXON

Attorneys for Plaintiffs

66a

THE SUPREME COURT OF WASHINGTON

No. 57038-8

ROY W. ROBINSON, ET AL,

Appellants,

V.

THE CITY OF SEATTLE, ET AL,

Respondents.

[Filed June 17, 1992]

ORDER DENYING

MOTION FOR RECONSIDERATION

The Court having decided unanimously that the

respondents’ motion for reconsideration should be denied,

It is ordered that the motion be and it hereby is denied.

Dated this 18th day of June, 1992.

/s/ Fred H. Dore

Chief Justice

67a

THE SUPREME COURT OF WASHINGTON

No. 57038-8

King County No.

88-2-09850-6

ROY W. and KATHLEEN ROBINSON, husband and wife,

individually and as partners d/b/a COMPUTER SLIDE

COMPANY and that class of persons similarly situated,

Appellants,

vs.

THE CITY OF SEATTLE, a municipal corporation,

Respondent,

WILLIAM JUSTEN and JANE DOE JUSTEN, husband and

wife, BEATRICE RYAN and JOHN DOE RYAN, wife and

husband, MOLLY MILLER and JOHN GAYMAN, wife and

husband, OVID THOMPSON, a single person,

Defendants.

MANDATE

THE STATE OF WASHINGTON TO: The Superior Court of

the State of Washington in and for King County.

This is to certify that the opinion of the Supreme Court

of the State of Washington filed on May 14, 1992, became

the decision terminating review of this court in the above

entitled cause on June 17, 1992. This cause is mandated to

the superior court from which the appeal was taken for

further proceedings in accordance with the attached true

copy of the opinion.

Pursuant to Rule of Appellate Procedure 14.3, costs are

taxed as follows: $2,584.00 awarded to Appellants and

against Respondents. Order Denying Motion for Reconsi-

deration was entered herein June 17, 1992. Copy attached.

a

68a

IN TESTIMONY WHEREOF, I have

hereunto set my hand and affixed the

seal of said Court at Olympia, this

18th day of June, 1992.

/s/_ C. J. Merritt

C.J. MERRITT

Clerk of the Supreme Court, State of

Washington

ec: Mr. Richard Sanders

Hon. Mark Sidran

Ms. Sandra Watson, Asst.

Mr. Ronald Zumburn

Mr. Edward Connor

Mr. John Groen

Mr. Benajmin Gantt

Hon. Richard Andrews

Bellevue City Attorney

Mr. Richard Gidley

Reporter of Decisions

69a

SUPREME COURT OF WASHINGTON

No. 57029-9

SINTRA, INC., ET AL,

Appellants,

v.

THE CITY OF SEATTLE, ET AL,

Respondents.

EN BANC

MAY 14, 1992

DurHaM, J. — In this land use action, we are asked to

decide for the first time the impact of federal civil mghts

actions on our takings jurisprudence. Increasingly, this

court is called upon to resolve disputes concerning land use

regulation, and the trend is likely to continue. A body of

cogent, workable rules upon which regulators and land-

owners alike can rely is essential to the task.

70a

In 1989, this court affirmed a holding of contempt against

the City of Seattle for enforcement of the Housing Preserva-

tion Ordinance (HPO) after it had been ruled invalid by the

Superior Court. R/L Assocs., Inc. v. Seattle, 113 Wn.2d 402,

411, 780 P.2d 838 (1989). Once again, we are asked to

review the actions of the City in a similar situation. Plain-

tiffs, Sintra, Inc.,“and its shareholders, Keith and Patty

Hamack. and Arthur and Susan Stanley (Sintra), appeal an

order dismissing on summary judgment all of their claims

against Seattle and four of its employees. Sintra claims that

the City violated Sintra’s federal mghts to substantive due

process and just compensation for a taking of its property,

and that it is entitled to damages under 42 U.S.C. § 1983.

We reverse the summary judgment in favor of the City and

remand for further proceedings.

In September 1984, Sintra purchased the Larned Hotel

on Westlake Avenue near downtown Seattle. The building

‘vas in an advanced state of disrepair and was almost

vacant. The previous owners were unable to find new

tenants for the building, despite their repeated attempts.

Sintra intended to renovate the building, and put retail

shops on the ground floor and a bed and breakfast on the

upper two floors. The building was purchased for $670,000

— $120,000 down and an installment note payable over 3

years. The terms of the financing were not favorable, but

Sintra was unable to obtain alternative financing. After

relocating the few remaining tenants, Sintra learned that

an adult entertainment business might be moving into the

adjacent building, and it became apprehensive about the

possibilities for developing a bed and breakfast.

When the adult entertainment establishment opened its

doors in July 1985, Sintra tried to sell the building. Sintra

hired real estate broker Wade Cole, but his attempts were

unsuccessful. Sintra and Cole also searched diligently for

someone to develop low income housing at the building. In

the meantime, Sintra defaulted on its installment note, and

ceased making payments.

Tla

Eventually, Sintra concluded that the only profitable use

to be made of the building was to convert it to a ministorage

warehouse. On October 29, 1985, Sintra applied to the City

for a master use permit for that purpose. Sintra was

informed that a housing demolition fee of $219,840 would

be required under the HPO for the change of use.' Seattle

Municipal Code (SMC) 22.210.

Sintra applied for a variance from the HPO fee on

November 6, 1985. On November 12, 1985, the sellers

accelerated the note. The parties dispute the ensuing course

of events. The City claims that Sintra failed to provide

requested information until August 1986. Sintra, however,

claims that despite repeated requests, the City failed to

make any recommendation concerning relief until Septem-

ber 1986. The record supports Sintra’s allegations of a con-

tinuing course of requests to the City to hasten the process.

Many letters were directed to the Department of Commu-

nity Development (DCD). At every turn, Sintra informed

the City of its financial hardship and its desire to resolve

the situation. Moreover, a memo from a city employee to

David Moseley of DCD written in January 1986 indicates

that a ministorage warehouse would be acceptable.

Nevertheless, no recommendation was given. In a meeting

with Sintra and its lawyers in March 1986, when Moseley

was questioned about his reasons for delaying action, he

responded: “What are you going to do, sue us?”

Although the City continually acknowledged that the

Larned was entirely unsuitable for housing, it insisted that

the HPO fee must be paid. In addition, the City required

Sintra to show that any endeavor would be profitable if the

HPO were not in effect.

‘The HPO contained provisions requiring developers to either replace any

low income housing they destroyed, or to pay a fee, based on the number of

units, into a housing replacement fund. Seattle Municipal Code (SMC)

22.210.050, former SMC 22.210.120(AX4). It also contained provisions requiring

owners to pay tenant relocation fees, as well as providing notice and protection

against anticipatory eviction. SMC 22.210.080-.100. Only the housing replace-

ment provisions are at issue here.

72a

In the meantime, events occurring on a different front

became relevant. In July 1986, King County Superior Court

found that the provisions of the HPO were an invalid tax

unauthorized by statute. A permanent injunction was

issued prohibiting the City from enforcing the HPO against

another developer, San Telmo Associates. Although the deci-

sion was appealed, the City did not seek a stay of the

injunction.

Finally, in September 1986, Moseley recommended that

Sintra be granted conditional relief. Instead of simply waiv-

ing the HPO requirements, the conditional relief proposed

by DCD would allow a variance for a ministorage ware-

house, but would require full payment of the $219,840 fee if

the use of the property were later changed. Sintra appealed,

seeking a complete waiver of the fee. Defendant Holly

Miller, Director of the City's Department of Construction

and Land Use, adopted the recommendation given by

Moseley in October 1986. Among the reasons given in a

concurrent memo, a city employee noted that granting com-

plete administrative relief would “establish an undesirable

precedent”. The memo also recognized that the City's law

department recommended granting the variance and full

relief from the fee.

Sintra appealed further to a hearing examiner, who

reversed Miller's action and remanded. The examiner con-

cluded that the conditional relief was not allowed under the

SMC, but that Sintra should still be granted some form of

partial relief so that it could use its property. Sintra did not

appeal from this decision, which apparently was never car-

ned out.

In April 1987, this court affirmed the trial court's order

invalidating the housing replacement provisions of the

HPO. San Telmo Assocs. v. Seattle, 108 Wn.2d 20, 25, 735

P.2d 673 (1987). We held that those requirements amounted

to an unauthorized tax, as opposed to a regulation on

development. San Telmo, at 24. We reasoned that shifting

the social cost of development from the public at large to

individual developers was a tax to “accomplish desired

73a

public benefits which cost money. . .'”. San Telmo, at 24

(quoting Hillis Homes, Inc. v. Snohomish Cy., 97 Wn.2d 804,

809, 650 P.2d 193 (1982)). Such a tax can only be levied

when authorized by the Legislature; it is not a valid

exercise of a city’s police power. Moreover, under RCW

82.02.020, cities are expressly prohibited from taxing

development. We also noted, in dicta, that the high fees

involved could constitute a taking under the Washington

Constitution. San Telmo, at 25.

On June 22, 1987, the City finally issued a change of use

license and a master use permit to Sintra. But by then,

Sintra claims, it was too late. The market opportunity was

gone, and the building was in an advanced state of dis-

repair.

This court again considered the HPO in 1989, and struck

down the tenant relocation provisions. R/L Assocs., Inc. v.

Seattle, 113 Wn.2d 402, 409, 780 P.2d 838 (1989). There, we

held that RCW 82.02.020 also prohibited the imposition of

the costs associated with tenant relocation, since those

requirements constituted an indirect charge on develop-

ment. R/L Assocs., at 409. We declined to reach the issue of

whether a taking had occurred, R/L Assocs., at 410, and

also refused to consider the substantive due process claim

because plaintiff had failed to plead it properly and had not

argued it to the trial court. R/L Assocs., at 412.

In addition, this court found that the City’s continued

enforcement of the tenant assistance provisions after they

had been ruled invalid by the Superior Court was contempt

of court. R/L Assocs., at 411. In response to the City's claim

that the injunction applied only to R/L, we noted:

(T]he City's argument would lead to the absurd conclusion

that it is free to enforce the provisions of a facially invalid

ordinance against the citizens of Seattle until and unless each

aggrieved party brings its own action challenging the ordi-

nance... .

The City's decision to continue to enforce the HPO was

deliberate. Two days after issuance of the injunction in this

case, the City issued a news release that the city attorney had

advised the Department of Construction and Land Use to

74a

continue to enforce the tenant relocation requirements. The

release stated that the City had been enjoined from enforcing

this provision in one case. The courts need not tolerate this

intentional violation of a valid judgment that prohibited the

City from enforcing those provisions.

R/L Assocs., at 411.

Sintra filed this action in October 1988. It claimed

damages under 42 U.S.C. § 1983 for deprivation of its sub-

stantive due process rights and an unconstitutional taking.

In addition, Sintra raised claims of inverse condemnation

and wrongful interference with a business expectancy. It

also requested attorney fees pursuant to 42 U.S.C. § 1988.

In October 1989, in a separate action, the trial court res-

cinded the sale of the Larned as the remedy for mis-

representation. In the case at bar, cross motions for

summary judgment were heard on February 2, 1990, and

the tral court granted summary judgment to the City. Sin-

tra appealed directly to this court.

INTRODUCTION

This case primarily involves an action against the City of

Seattle (City) and several officials under 42 U.S.C. § 1983.

Essentially, § 1983 provides remedies not otherwise availa-

ble in tort as a matter of federal statutory law. Sintra

asserts two underlying causes of action: First, that its rights

under the Fifth Amendment and Const. art. 1, § 16 (amend.

9) were violated; that is, it claims that its property was

taken for public use without just compensation. Second,

Sintra claims that it was denied substantive due process by

the enforcement of the HPO.

The ordinance, as explained above, has been declared

invalid on previous occasions, and that issue is not before

the court here. However, because our prior cases were based

on statutory grounds, the constitutional questions raised by

Sintra have not been addressed. Sintra now seeks reversal

of the summary judgment entered in favor of all defendants

75a

so that it may proceed to trial on money damages for the

losses it suffered from the prior enforcement of the HPO."

42 U.S.C. § 1983

[1-3] We begin with a review of the civil nights statute.

Under 42 U.S.C. § 1983, a plaintiff may recover money

damages if it can show that it has been deprived of some

federal right. State courts have concurrent jurisdiction to

hear and decide § 1983 claims. Kenneth B. Bley, Use of the

Civil Rights Acts To Recover Money Damages for the Over-

regulation of Land, 14 Urb. Law. 223, 229 (1982). 42 U.S.C.

§ 1983 states:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the juris-

diction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress.

There are only two essential elements in a § 1983 action: (1)

the plaintiff must show that some person deprived it of a

federal constitutional or statutory right; and (2) that person

must have been acting under color of state law. Parratt v.

Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908

(1981); American Legion Post 32 v. Walla Walla, 116 Wn.2d

1, 12, 802 P.2d 784 (1991); Jordan v. Oakville, 106 Wn.2d

122, 134, 720 P.2d 824 (1986). A local government is a

“person” for purposes of § 1983. Monell v. Department of

Social Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018

(1978); Turngren v. King Cy., 104 Wn.2d 293, 311, 705 P.2d

258 (1985). Land use disputes, including takings claims, are

an appropriate subject of § 1983 actions. Front Royal &

*In considering an appeal from an order of summary judgment, this court

engages in the same inquiry as the triai court. Marincovich v. Tarabochia, 114

Wn.2d 271, 274, 787 P.2d 562 (1990). The court considers all facts submitted

and all reasonable inferences from the facts in a light most favorable to the

nonmoving party, here, Sintra. Marincovich, at 274 The motion should be

granted only when there is no genuine issue of matenal fact, and, as a matter of

law, the moving party is entitled to judgment. Wilsun v. Steinbach, 98 Wn 2d

434, 437, 656 P.2d 1030 (1982)

76a

Warren Cy. Indus. Park Corp. v. Front Royal, Va., 708 F.

Supp. 1477, 1483 (W.D. Va. 1989).

To state a cause of action, then, a plaintiff need only

allege that (1) defendant acted under color of state law, and

(2) defendant's conduct deprived plaintiff of rights protected

by the Constitution or laws of the United States. Brower v.

Wells, 103 Wn.2d 96, 105, 690 P.2d 1144 (1984). The lan-

yuage contained in Sintra’s complaint is more than suffi-

cient to state a cause of action.”

FEDERAL RIGHTS

[4] We have previously held that land use regulations

which too drastically curtail property owners’ use of their

property either may cause a constitutional taking or may

constitute a denial of substantive due process. Presbytery of

Seattle v. King Cy., 114 Wn.2d 320, 329, 787 P.2d 907, cert.

denied, 111 S. Ct. 284 (1990); Orion Corp. v. State, 109

Wn.2d 621, 747 P.2d 1062 (1987) (Orion II), cert. denied, 486

U.S. 1022 (1988). Presbytery set forth the appropriate anal-

ysis for claims of overly severe land use regulation and

delineated the tests to be used under the alternative

analyses.

{5} Under Presbytery, a court inquires, as a threshold

matter, whether the challenged regulation safeguards the

public interest in health, safety, the environment, or fiscal

integrity. Presbytery, at 329. The court also asks if the regu-

:ation destroys one or more of the fundamental attributes of

property ownership — the right to possess, to exclude

others, and to dispose of property. Presbytery, at 329-30

citing Richard L. Settle, Regulatory Taking Doctrine in

‘The complaint alleges that: “The defendants herein have violated the Civil

Xights of the plaintiffs by acting under color of law to enforce the HPO against

rlainuffs in contravention of the Fifth and Fourteenth Amendments to the

‘nited States Constitution and 42 U.S.C. 1983. Defendants have maliciously,

ecklessly and/or wantonly violated the constitutional rights of the plaintiffs by

villfully enforcing an ordinance unconstitutional on its face even after the

wdinance had been judicially declared invalid and/or continued enforcement

iad been permanently enjoined by judicial decree Defendants have taken

roperty from plaintiffs without Due Process nor have they paid Just Compen-

ation. Clerks Papers, at 7

77a

Washington: Now You See It, Now You Don't, 12 U. Puget

Sound L. Rev. 339, 356 (1988-1989)). If no fundamental

attribute of property is implicated, and the regulation pro-

tects the public from a permissible harm, then a constitu-

tional taking does not exist, but a substantive due process

claim may still be available.

1. Takings Clause.

{6] Sintra claims that the HPO prevented economically

viable use of its land, and that its property was thus taken

without just compensation. The Fifth Amendment provides

in part: "[NJor shall private property be taken for public

use, without just compensation.” The restriction is applied

to the states through the Fourteenth Amendment. See

Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226, 41 L. Ed.

979, 17 S. Ct. 581 (1897). The Washington Constitution

provides the same right.” In addition to outright physical

appropriation of property, a taking can be accomplished by

overregulation. A taking by regulation is often called an

inverse condemnation, because the condemnation is found

by the court after it has already been implemented by the

reguiation. Compensation is nonetheless required under the

constitution if the property was taken for public use.

In Presbytery of Seattle v. King Cy., supra, this court

clarified regulatory takings analysis and made plain the

‘Const. art. 1, § 16 (amend. 9) reads as follows:

“Private property shall not be taken for private use, except for private ways

of necessity, and for drains, flumes, or ditches on or across the lands of others

for agricultural, domestic, or sanitary purposes. No private property shall be

taken or damaged for public or private use without just compensation having

been first made, or paid into court for the owner, and no right-of-way shall be

appropriated to the use of any corporation other than municipal until full

compensation therefor be first made in money, or ascertained and paid into

court for the owner, irrespective of any benefit from any improvement proposed

by such corporation, which compensation shall be ascertained by a jury, unless a

jury be waived, as in other civil cases in courts of record, in the manner

prescribed by law. Whenever an attempt is made to take private property for a

use alleged to be public, the question whether the contemplated use be really

public shall be a judicial question, and determined as such, without regard to

any legislative assertion that the use is public: Provided, that the taking of

private property by the state for land reclamation and settlement purposes 's

hereby declared to be for public use.”

78a

necessary steps to show that a taking had occurred. We

employ the Presbytery framework here, and also refer to the

rules set out by the United States Supreme Court in its

1987 trilogy of land use regulation cases: Nollan v. Califor-

nia Coastai Comm'n, 483 U.S. 825, 97 L. Ed. 2d 677, 107 S.

Ct. 3141 (1987); First English Evangelical Lutheran Church

vu. County of Los Angeles, 482 U.S. 304, 96 L. Ed. 2d 250,

107 S. Ct. 2378 (1987); Keystone Bituminous Coal Ass'n v.

DeBenedictis, 480 U.S. 470, 94 L. Ed. 2d 472, 107 S. Ct.

1232 (1987). This is for two reasons. First, the United

States Constitution sets a minimum standard that

prescribes that compensation must be given if a taking has

occurred. Second, the issue before the court here concerns

the deprivation of a federal right. State law may provide

useful guidance in this determination, but federal law is

ultimately controlling.”

{7] In Presbytery, this court identified a threshold inquiry,

to be decided prior to application of a takings analysis. If

the chalienged regulation is merely an exercise of the police

power to safeguard the public interest in health, safety, the

environment, or fiscal integrity, it is not a taking. Pres-

bytery, at 329. The regulation may be a taking, however, if it

“goes beyond preventing a public harm [to] actually enhance

[| a publicly owned right in property.”* The City relies heav-

ily on its argument that Sintra has not met this threshold.

It claims that the HPO was “enacted to prevent a public

harm — displacement and homelessness of low-income

tenants. By no stretch of the imagination did it enhance a

publicly-owned interest in property.” Brief of Respondent, at

37.

See also Comment, Taking Issue With Takings: Has the Washington State

Supreme Court Gone Too Far?, 66 Wash. L. Rev. 545 (1991).

“A regulation may also be a taking if it destroys one or more of the fun-

damental attributes of property ownership — the rights to possess, to dispose,

or to exclude others. Presbytery, at 329-30; Nollan, 483 U.S. at 831. If an

attribute of property is implicated, then it is likely that a taking has occurred.

Presdvtery, at 333 n.21 (citing PruneYard Shopping Ctr. v. Robins, 447 U.S. 74,

64 L Fd 2d 741, 100 S Ct 2035 (1980).

79a

A closer examination of the policies behind this threshold

inquiry is necessary to resolve this question. The threshold

test is designed to prevent undue chilling on legislative

bodies’ attempts to properly and carefully structure land

use regulations which prevent public harms. Orion II, at

649. It is permissible for legislative bodies to wield police

power to prevent activities which are similar to public

nuisances. In Keystone, the Supreme Court discussed the

difference between preventing harm and providing a benefit

as follows:

Under our system of government, one of the States pnmary

wavs of preserving the public weal is restricting the uses indi-

viduals can make of their property. While each of us is bur-

dened somewhat by such restrictions, we, in turn, benefit

greatly from the restrictions that are placed on others. . . .

Long ago it was recognized that “all property in this country is

held under the implied obligation that the owner's use of it

shall not be injurious to the community,” and the Takings

Clause did not transform that principle to one that requires

compensation whenever the State asserts its power to enforce

it.

.. . (A) taking, is, in essence, a determination that the

= at large, rather than a single owner, must bear the

urden of an exercise of state power in the public interest,”

and we recognized that this question “necessarily requires a

weighing of private and public interests."

(Footnotes and citations omitted.) Keystone, at 491-92. Thus,

land use regulation in the nature of restricting nuisance-

like activity is permissible. But regulations which enhance

public interests, and go beyond preventing harmful activity,

may constitute a taking.

[8] The regulatory scheme here goes beyond preventing

harm. The HPO required that landowners who wished to

alter the use of their property either replace the low-income

housing or pay extremely high sums of money into a hous-

ing replacement fund. The harm sought to be prevented —

people standing on the street corner with nowhere to go —

was exceeded. The regulation required the improper addi-

tional step of providing new housing. Moreover, this burden

was unfairly allocated to individual property owners, rather

80a

than equally distributed among all citizens. This “goes

beyond preventing a public harm". Presbytery, at 333.

[9] In our previous decisions involving the HPO, we have

said as much. In characterizing the HPO as an invalid tax,

this court said: —

Requiring a developer either to construct low income housing

or contnbute’ to a fund for such housing gives the developer

the option of paying a tax in kind or in money. . . . The City is

shifting the public responsibility of providing such housing

to a limited segment of the population. This shifting is a tax,

and pursuant to RCW 82.02.020, it cannot be allowed.

San Telmo, 108 Wn.2d at 24. Certainly, a regulatory scheme

which is later determined to be a tax surpasses the proper

scope of the City’s police power.’ We, therefore, can deter-

mine, as a matter of law, that the HPO was not a proper

exercise of the City’s police power, and Presbytery's

threshold requirements have been met here.

{10} Our inquiry does not end with this determination,

however. A regulation effects a taking of private property if

‘it does not substantially advance legitimate state interests,

_.. or denies an owner economically viable use of his land.’ "

Keystone, 480 U.S. at 485 (quoting Agins uv. Tiburon, 447

U.S. 255, 260, 65 L. Ed. 2d 106, 100 S. Ct. 2138 (1980));

Nollan, 483 U.S. at 834. In Presbytery, the court expounded

on the precise application of this test.

First, if the regulation does not “substantially advance{]

legitimate state interests", then it automatically constitutes

a taking. Presbytery, at 333; see Nollan, at 834-35. Here, the

regulation must fairly be said to substantially advance a

‘Sintra relies on an alternative method of passing the threshold. If the public

is actually provided with some use of the owner's land, such as an easement

across it, a taking has almost certainly occurred. Nollan, at 831. This type of

situation may properly be called an “exaction”, as opposed to a “use”, case. An

analysis of an exaction case focuses on the nexus test set forth in Nollan.

Nollan, at 641. Any conditions on development must serve the same purpose as

the ban on development, or the regulation requiring those conditions will be a

taking requiring compensation. Nollan, at 836-37. This type of inquiry is useful

in determining if regulations which place conditions on development will be

allowed This is not an exaction case, however, because no physical invasion has

been effected by the HPO. Thus, contrary to Sintra’s arguments, the Nollan

nexus test does not apply.

8la

legitimate interest of the City in protecting its low income

housing supply. If the regulation were valid, of course, the

money raised could help to alleviate any housing shortage.

[11] The question of economic viability of this particular

property is more troublesome.’ To determine if the

regulation’s economic impact is excessive, and thus consti-

tutes a taking, we have suggested three factors to consider.

The court should consider: "(1) the economic impact of the

regulation on the property; (2) the extent of the regulation’s

interference with investment-backed expectations; and (3)

the character of the government action.” (Footnotes omit-

ted.) Presbytery, at 335-36; see also MacLeod v. County of

Santa Clara, 749 F.2d 541, 545-49 (9th Cir. 1984).

Our review of the record indicates that there are insuffi-

cient facts to evaluate either the first or second factor of the

Presbytery analysis.” The extent of the economic impact of

the HPO on Sintra’s property is unclear. The City contends

that any economic problems were of Sintra's own making,

brought about by poor business decisions. Certainly, the

extent that the regulation has interfered with the expecta-

tions of Sintra, as well as the question of whether those

expectations were investment backed, has not been

resolved, and is indeed hotly disputed. Again, the City

claims that Sintra could not have found investors in its plan

to turn the Larned into a ministorage warehouse, and never

really expected to have a profitable business at that loca-

tion. Sintra, however, argues that at least it would not have

lost its investment entirely had it been allowed to proceed,

“A facial challenge is treated differently than one involving application of the

regulation to specific property. Presbytery, at 333; Keystone, at 495. “[I!f the

challenge to the regulation is a facial one, and if the landowner succeeds in

showing that a regulation denies all economically viable use of any parcel of

regulated property, then a constitutional taking has occurred.” Presbytery, at

335; cf. Robinson v. Seattle, 119 Wn.2d 34, __ P2d ___ (1992). This is a stricter

standard than that used for as-applied challenges. Since a specific property is

involved, this ia an as-applied challenge to the HPO.

"Determining if a taking has occurred is a question of fact. Front Royal, 708

F. Supp. at 1484.

——&&©€g °° ° °° °° °° °° °° —

82a

and claims to be able to pr

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