Greater Harbor 2000 v. City of Seattle

Madsen, J.

(concurrence/dissent) — The trial court erroneously granted summary judgment of dismissal in favor of the City of Seattle on the ground that all the Appellants lack standing, and the majority erroneously affirms this ruling. However, I concur with the majority’s ultimate conclusion on the merits that at this stage of the proceedings there has been no violation of Seattle Municipal Code (SMC) 15.62.090 by the City of Seattle. Accordingly, Appellants are not entitled to relief.

Standing

A landowner whose property abuts a street or a portion of a street sought to be vacated or a nonabutting landowner who suffers special injury has standing to challenge a street vacation. London v. City of Seattle, 93 Wn.2d 657, 660-61, 611 P.2d 781 (1980); see Yarrow First Assocs. v. Town of Clyde Hill, 66 Wn.2d 371, 374, 403 P.2d 49 (1965) (town’s plan to landlock property through street vacation created a special damage supporting the property owner’s challenge to attempted vacation). The issue here is whether taxpayer standing provides an independent basis to challenge an allegedly illegal street vacation, and, if so, whether the taxpayer must suffer some particularized injury greater than that suffered by other taxpayers before he or she may bring suit. The majority concludes that such particularized injury must be shown. I disagree.

As the cases cited by the majority suggest, the parameters of taxpayer standard are not entirely clear. Nonetheless, this is an appropriate case in which to recognize taxpayer standing. RCW 35.79.030 provides that a city or town may provide by ordinance that a street vacation will not be effective until abutting landowners compensate the city or town. Pursuant to the state statute, SMC 15.62.090(A) mandates that the City "shall not” pass any ordinance vacating any street or alley until the city col*287lects one-half of the appraised value of the property to be vacated from the abutting landowners.43 Thus, the City’s income is impacted when a street is vacated. Here, over $3 million is at stake. Taxpayers clearly should have standing to complain about the legality of the City’s governmental act if the City proceeds to vacate streets while disregarding SMC 15.62.090.

"The recognition of taxpayer standing has been given freely in the interest of providing a judicial forum when this state’s citizens contest the legality of official acts of their government.” State ex rel. Boyles v. Whatcom County Superior Court, 103 Wn.2d 610, 614, 694 P.2d 27 (1985). Taxpayer standing is particularly appropriate in the context of this case where intergovernmental agreements provide for street vacations and the sole abutting landowner and the only directly affected entity is the Port, a party to those agreements. Absent taxpayer standing, no one is in a position to complain about the allegedly illegal street vacations.

Accordingly, this court should follow those cases holding that taxpayer standing to challenge governmental acts does not require alleging a personal stake in the matter. Walker v. Munro, 124 Wn.2d 402, 419, 879 P.2d 920 (1994); State ex rel. Boyles, 103 Wn.2d at 614-15. The court should recognize that, in addition to the standing conferred on abutting landowners and nonabutting landowners suffering special injury, taxpayer standing to challenge street vacations as illegal may be found where a city or town has enacted an ordinance pursuant to RCW 35.79.030 which provides that compensation shall be paid to the city or town by the abutting landowners as a prerequisite to vacation.

Whether SMC 15.62.090 Violated

The next question is whether the City of Seattle has unlawfully violated SMC 15.62.090 by vacating streets *288without requiring that the abutting landowner, the Port of Seattle, pay one-half of the appraised value. At the time Appellants brought this suit, the City Council had passed Resolution 29195, voting to accept the recommendation of its Transportation Committee to grant preliminary approval of the Port of Seattle’s petition to vacate the streets at issue. That resolution refers to the 1989 contract between the City and the Port and its terms providing that no payment would be due from the Port upon future vacation of streets requested by the Port.

Initially, the 1989 contract and the accompanying 1989 ordinance did not amend SMC 15.62.090. A contract plainly cannot amend an ordinance. The accompanying 1989 ordinance authorizing the mayor to execute the contract with the Port stated that future street vacations would not require payment, but did not comply with state and local law concerning the procedures required for amending another ordinance, as Justice Sanders’ dissent explains. Thus, the 1989 ordinance did not amend SMC 15.62.090.

Further, the 1989 ordinance did not suspend SMC 15.62.090, contrary to the City’s argument. That ordinance makes no mention of SMC 15.62.090 and does not indicate it operated to suspend SMC 15.62.090. At a minimum, an ordinance suspending the operation of another ordinance should plainly indicate the suspension. Otherwise, neither those voting on the ordinance providing for suspension nor the public will have notice that an existing ordinance is being suspended.

The 1989 contract does not otherwise justify ignoring the payment requirements of SMC 15.62.090. First, as Justice Sanders explains in his dissent, the City’s contract is illegal insofar as it requires performance in violation of the ordinance. Second, under the express terms of the Seattle City Charter art. XXII, § 2, the City could suspend *289operation of SMC 15.62.090 only by ordinance. It could not do so by contract.44

However, Appellants’ argument that the City has violated SMC 15.62.090 because the Council passed the resolution is without merit as well. The resolution is not an ordinance at all, and thus, not an ordinance vacating the streets without payment. While Resolution 29195 might suggest plans to bypass the requirements of SMC 15.62.090, so far the City has not violated that ordinance. Accordingly, Appellants are not entitled to any relief as no violation has occurred.

Finally, to the extent Appellants’ argument is that the City has violated its charter by trying to amend or suspend SMC 15.62.090 by way of Resolution 29195, the argument should be rejected. Under the Seattle City Charter art. XXII, § 2, the City could amend or suspend the operation of SMC 15.62.090 vis á vis the Port only by ordinance. The City could not and did not amend or suspend SMC 15.62.090 by resolution.45

I would hold that taxpayers have standing to challenge the legality of a street vacation where a city or town has enacted an ordinance pursuant to RCW 35.79.030 which provides that compensation shall be paid to the city or town by the abutting landowners before the street is vacated. However, while Appellants have standing to bring suit, they are not entitled to relief because, as of this point in time, the City has not violated its ordinance, SMC 15.62.090.

.Guy, J., concurs with Madsen, J.

SMC 15.62.090(B) allows conveyance of other property to the City in lieu of this payment.

The 1980 contract, also relied upon by the City, is irrelevant to this action because it expired by its own terms before the present dispute arose and it does not pertain to the proposed street vacations at issue in this case.

I express no opinion at this point as to the outcome if the City, in the future, attempts to suspend operation of SMC 15.62.090 by ordinance. An opinion on this issue, at this time, by this court, would be a prohibited advisory opinion. See Walker v. Munro, 124 Wn.2d 402, 411-12, 879 P.2d 920 (1994); Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973).