Tiffany Family Trust Corp. v. City of Kent

¶27 Sanders, J.

(dissenting) — This proceeding is an original action seeking (1) just compensation for property *242taken by assessment in excess of the special benefit and (2) damages for property deprived absent substantive due process. Even if an assessment is achieved through strict adherence to all state and local procedures, it may still accomplish a taking of property for which just compensation is due, or it may be so unduly oppressive as to deprive the owner of his property absent substantive due process.13

¶28 Tiffany Family Trust Corporation (Tiffany) properly brings its state inverse condemnation claim seeking just compensation for a final local improvement district (LID) assessment, claiming this final assessment exceeds any special benefit to the property. If this court rejects that inverse condemnation claim, Tiffany’s 42 U.S.C. § 1983 federal takings claim is ripe because the state remedy for compensation is unavailing. Tiffany’s companion federal claim that its property has been deprived by state action absent that process due under the fourteenth amendment to the United States Constitution is an entirely separate claim deserving independent consideration. However, the majority dismisses all claims under 42 U.S.C. § 1983, asserting the claims were not properly raised in the trial court. The majority errs, as discussed below.

f 29 In 1986 the owner of the subject property applied for a conditional use permit to increase its industrial use from 25 percent to 35 percent. The city of Kent granted the permit conditioned on the owner’s promise to enter an environmental mitigation agreement (EMA). To mitigate the 17 additional peak-hour trips caused by the new use, the owner agreed to pay a sum then estimated at $23,800 under a LID to be formed at a future date.

¶30 The LID was formed in 1998. Notice allegedly sent by regular mail to the addresses of the affected property owners as shown on the tax rolls, however, was not received by Tiffany. The city ultimately assessed Tiffany’s property $364,939, over 10 times the originally contemplated figure. *243No direct judicial appeal of the assessment was filed by Tiffany after the city confirmed the LID assessment in January 1999 and posted notice of original assessment by certified mail in February 1999.

¶31 The city’s basis for its assessment against the Tiffany property is set forth in the Final Special Benefit Study for South 196th/200th Street Corridor Project LID number 340, prepared by the city’s appraiser. Clerk’s Papers (CP) at 76-84. The Tiffany property was one of only a few properties south of South 212th Street included within the local improvement district. The properties to the east, west, and south of the Tiffany property were not within the LID and therefore not assessed. The city’s appraisal report states:

Generally, properties to the south of S. 212th Street are without special benefits, except for properties constructed from 1986 with development conditions related to the project.

CP at 80.

¶32 The Tiffany property was apparently included within the LID, and assessed, not because it would receive any “special benefits,” i.e., an increase in the fair market value of the property immediately after the public improvement, but rather because it had obtained a conditional use permit in 1986 to slightly expand its industrial use.

¶33 Because Tiffany did not contest the assessment administratively nor did it appeal the assessment within 10 days after the ordinance confirming the assessment role became effective as required by RCW 35.44.210, the majority claims the assessment is final (absent some jurisdictional defect, of which there is none), and the assessment cannot be collaterally attacked. End of story.

¶34 However this is where the real story begins, not where it ends.

¶35 In February 2000, Tiffany filed this lawsuit for state inverse condemnation and for relief under 42 U.S.C. § 1983 (§ 1983). Pursuant to § 1983 Tiffany argued the excessive assessment was a taking under the fifth amendment to the United States Constitution for which just compensation *244was due and also deprived Tiffany of its property without that process due under the Fourteenth Amendment.

I. Tiffany’s State Inverse Condemnation Claim

¶36 While it is true a property owner wishing to change an assessment must follow the statutory procedure,14 a takings claim under the state constitution is not a challenge to the assessment; rather it is premised upon the finality of the assessment. The claim is it takes private property without just compensation by assessing in excess of the special benefit.

¶37 However the majority does not even acknowledge a separate cause of action to secure our state constitutional right of just compensation for private property taken by the government for public use, constitution article I, section 16 (“No private property shall be taken or damaged for public or private use without just compensation having been first made . . . .”), notwithstanding our clear holding that an assessment in excess of special benefit is such a taking. See, e.g., Heavens v. King County Rural Library Dist., 66 Wn.2d 558, 564, 404 P.2d 453 (1965) (“ ‘It is the basic principle and the very life of the doctrine of special assessments that there can be no special assessment to pay for a thing which has conferred no special benefit upon the property assessed. To assess property for a thing which did not benefit it would be pro tanto the taking of private property for a public use without compensation, hence unconstitutional.’ ” (quoting In re Shilshole Ave., 85 Wash. 522, 537, 148 P. 781 (1915))); Behrens v. Commercial Waterway Dist. No. 1, 107 Wash. 155, 158, 181 P. 892 (1919) (“[I]t is fundamental that no greater charge can be made than a sum equal to the benefits received; for if a charge be made over and above the benefit to the property, it is a taking of property without just compensation and violates art. I, § 16 of the Bill of Rights.”); see also In re Consol. Appeals of Jones, 52 Wn.2d *245143, 324 P.2d 259 (1958). Thus, a property owner alleging an excessive assessment states a takings claim under article I, section 16 of the state constitution and has an independent cause of action to be determined on its merit in a court of law.

¶38 But the majority denies constitutionally required just compensation by essentially arguing the procedures to change an assessment through appeal within 10 days thereof preclude an independent action under the state constitution for just compensation. Further, the majority interprets and applies RCW 35.44.190 to foreclose even the possibility of a state constitutional takings or due process claim. Majority at 238-39. Asserting that an unchallenged assessment is “conclusive,” the majority claims the special benefit must therefore equal the amount of the assessment. Period. Thus, in the eyes of the majority there can never be a takings claim predicated on an unchallenged assessment. The majority’s creative interpretation of the statute (which speaks only of proceedings, not of the result15 ) also, in the majority’s view, trumps the state constitution, which clearly forbids takings without just compensation. The majority therefore holds a statute can bar an action for a constitutional deprivation, precisely the opposite of the correct hierarchy.

If then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle, that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This *246doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. That it thus reduces to nothing, what we have deemed the greatest improvement on political institutions, a written constitution, would, of itself, be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction.

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-77, 2 L. Ed. 60 (1803) (Marshall, C.J.). The mere passage of time does not bar an action seeking just compensation for a taking under constitution article I, section 16. Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 631, 733 P.2d 182 (1987) (“It is well settled in Washington that where a taking occurs by eminent domain or by inverse condemnation, a landowner’s right to seek just compensation may not be barred merely by the passage of time.”). In Valley View, the developer did not challenge a rezone of its property within the 30 day period prescribed by ordinance, but the case proceeded based on the above stated rule. Id.16 Nor is a direct judicial appeal the exclusive remedy.

¶39 The majority asserts, “In the same cases in which we have held that special assessments made in excess of special benefits constitute a taking, we have just as clearly stated that such challenges must be made pursuant to statutory procedure unless a jurisdictional defect exists,” and, “In over 100 years of precedent, we have clearly held that the statutory procedure for challenging special assessments is the exclusive means for attacking assessments as *247excessive or otherwise incorrect.” Majority at 236-37. However, the majority confuses an action to change an assessment with an independent action asserting taking without just compensation. None of the authorities cited by the majority support its claim, and some contradict it.

¶40 The majority cites Heavens; Hargreaves v. Mukilteo Water Dist., 43 Wn.2d 326, 261 P.2d 122 (1953); and Alexander v. City of Tacoma, 35 Wash. 366, 77 P. 686 (1904).

¶41 In Heavens the property owner sought to change an assessment for a library as an improper purpose for a local improvement district. 66 Wn.2d at 562. The taking of private property without just compensation was not at issue. Moreover, the owner successfully challenged the assessment by declaratory judgment, never appealing under former RCW 56.20.080, repealed by Laws of 1996, ch. 230, § 1702.

f 42 In Hargreaves the property owner sought to change a deficiency assessment, which the court invalidated because the water district had not assessed all of the property ' within the district. 43 Wn.2d at 330. In dictum, the court reiterated the general rule that an assessment cannot exceed special benefit without resulting in a taking. Id. at 331-32. However, a takings claim was not made in Hargreaves and the court certainly did not say that a takings claim is barred unless the statutory procedure to change the assessment is followed.

f 43 Alexander merely stands for the oft-quoted rule that an action to change an assessment must follow the statutorily prescribed processes. 35 Wash, at 375. That case does not discuss the nature of an independent takings claim.

¶44 The majority misrepresents these cases to support its novel assertion that a takings claim is lost if statutory procedures to directly appeal the assessment are not utilized. Moreover, by extension, the majority would also necessarily hold a takings claim is equally lost if a property owner did undertake a timely appeal. By logical extension of the majority’s view there can never be an action in this *248state for just compensation for an excessive assessment because if a statutory appeal of the assessment is the exclusive vehicle, such an appeal can never result in any money judgment against the government. Therefore, according to the majority, one can never sue the government for just compensation pursuant to article I, section 16 when the assessment exceeds the special benefit. The majority simply repeals the takings article by judicial fiat!

¶45 Unfortunately, the majority fails to recognize that an action to change an assessment and a claim for just compensation are very different. Tiffany’s suit is not an attempt to change the assessment nor is it a collateral attack on the assessment per se. This suit independently claims the government took Tiffany’s property without just compensation because it assessed the property in excess of the special benefit. This is hardly a novel view.

¶46 LID assessments inversely condemn property to the extent they exceed any special benefit to the property assessed. Bellevue Plaza, Inc. v. City of Bellevue, 121 Wn.2d 397, 404, 851 P.2d 662 (1993). This standard requires the assessor to compare the value of the property immediately before the improvements with its value immediately after the improvements. Id.; Heavens, 66 Wn.2d at 564; In re Appeal of Schmitz, 44 Wn.2d 429, 268 P.2d 436 (1954). The theory is that the property owner loses nothing if he is assessed less then the value added by the public improvement. The difference in value, if any, is the amount of the special benefit. Here, however, according to the city’s own appraisal report the LID improvements added no value to Tiffany’s property in this sense. The assessor valued the Tiffany property based on the difference between the value before the permit was granted to its value 12 years later after the LID was formed. CP at 192 (the improvements were “a prerequisite for development of the properties to their highest and best uses”). This is not a “special benefit” which can avoid an inverse condemnation. Bellevue Plaza, 121 Wn.2d at 404. This final assessment took Tiffany’s property, entitling Tiffany to compensation under the state *249constitution. Const, art. I, § 16; see Behrens, 107 Wash, at 158.

II. Tiffany’s Claims Under 42 U.S.C. § 1983

¶47 Without citation to authority, the majority refuses to consider Tiffany’s § 1983 claims asserting they are not adequately stated in Tiffany’s motion for summary judgment. Majority at 239-40.

¶48 Apparently the majority is referring to the common law rule codified in RAP 9.12,17 which allows an appellate court to consider only the issues and evidence “called to the attention” of the trial court. However, anything referred to in the trial court’s order has been called to its attention and hence is proper for appellate review. See Millikan v. Bd. of Dirs. of Everett Sch. Dist. No. 2, 92 Wn.2d 213, 215, 595 P.2d 533 (1979) (appellate court may consider all documents upon which the trial court relied); RAP 9.12. “ ‘The purpose of this limitation is to effectuate the rule that the appellate court engages in the same inquiry as the trial court.’ ” Mithoug v. Apollo Radio of Spokane, 128 Wn.2d 460, 462, 909 P.2d 291 (1996) (quoting Wash. Fed’n of State Employees v. Office of Fin. Mgmt., 121 Wn.2d 152, 157, 849 P.2d 1201 (1993)).

¶49 Moreover, it was the city’s motion to dismiss and for summary judgment which was granted and that motion sought to dismiss the entire complaint, including the § 1983 claims, CP at 105, because Tiffany did make a claim under § 1983 in the complaint, CP at 12, and in its briefing before the trial court, CP at 311 n.l. All of this was considered by the trial court when making its ruling. CP at 334-35.

*250¶50 The trial court obviously considered the issue before it since it definitely ruled: “There were no federal or state constitutional violations in the Local Improvement District No. 340 proceedings that would give rise to a claim, including a claim under 42 U.S.C. § 1983.” CP at 335 (emphasis added). Since the trial court dismissed the entire complaint, it of necessity ruled on § 1983. This order of the trial court is before us, and hence any claims under § 1983 are as well. As the trial court dismissed all § 1983 claims we, engaging in the same inquiry as the trial court, must review the propriety of that judgment.

¶51 42 U.S.C. § 1983 was originally enacted as part of the Civil Rights Act of 1871 to implement the Fourteenth Amendment, originating in the Ku Klux Klan Act of the same year. 14 C.J.S. Civil Rights § 5, at 492 (1991); see also District of Columbia v. Carter, 409 U.S. 418, 425-29, 93 S. Ct. 602, 34 L. Ed. 2d 613 (1973). Its main purpose was to provide any person the ability to defend his constitutional rights against abusive state action. 14 C.J.S. Civil Rights § 6, at 493-94. All persons regardless of skin color are equal before the law, and state governments could not abridge the federal rights of any person without facing the possibility of suit under § 1983 to vindicate those rights. Id. Thus, the heart of § 1983 is a. federal cause of action to protect against state deprivations. This purpose must be kept in mind when applying the statute to the present situation. State law cannot be a defense to a § 1983 claim because it is wrongful action under color of state law which is the very basis of the claim.

A. Takings

¶52 Federal law allows a person to vindicate his constitutional rights by suing, pursuant to 42 U.S.C. § 1983,18 a state actor who has burdened federal rights. Sintra, Inc. v. *251City of Seattle, 119 Wn.2d 1, 11, 829 P.2d 765 (1992). When a plaintiff alleges a regulatory taking of his property because land use restrictions deprive him of his property’s use in violation of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, his claim must be “ripe” to be considered. Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 187, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985). This is not a requirement that a plaintiff need exhaust administrative review procedures before pursuing a § 1983 claim. See Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982).

¶53 In the federal takings context ripeness has two elements: a final agency decision and exhaustion of state mechanisms to obtain just compensation. Williamson, 473 U.S. at 187-97. The former applies only to regulatory takings, i.e., use restrictions, Daniel v. County of Santa Barbara, 288 F.3d 375, 382 (9th Cir. 2002) and hence is inapplicable here. The remaining ripeness question is whether Tiffany sought and exhausted state compensation procedures. If dismissal of its inverse condemnation claim is affirmed, it has. By filing this lawsuit and seeking relief under the Washington Constitution through an inverse condemnation proceeding, an adjudication of the inverse condemnation claim will exhaust state procedures to obtain just compensation. Allingham v. City of Seattle, 109 Wn.2d 947, 954, 749 P.2d 160, 757 P.2d 533 (1988) (“Had the plaintiffs sought compensation for the taking of their property even as an alternative remedy in the present action, they would have exhausted the procedures available under *252Washington law for obtaining just compensation.”), overruled on other grounds by Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907 (1990); see also Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 734 n.8, 117 S. Ct. 1659, 137 L. Ed. 2d 980 (1997) (“Ordinarily, a plaintiff must seek compensation through state inverse condemnation proceedings before initiating a takings suit in federal court. . . .” (emphasis added)).

¶54 A state inverse condemnation claim is the proper way to seek compensation, and that is the course Tiffany here pursues. If we deny monetary compensation for Tiffany’s state inverse condemnation claim, its § 1983 takings claim is ripe and must be considered. And, since the assessment exceeds special benefit, the takings claim has merit.

B. Substantive Due Process

¶55 Tiffany also claims the assessment violates substantive due process. To determine whether a regulation deprives one of his property absent that substantive process which is due,19 we must ask:

“(1) whether the regulation is aimed at achieving a legitimate public purpose; (2) whether it uses means that are reasonably necessary to achieve that purpose; and (3) whether it is unduly oppressive on the landowner.”

Sintra, 119 Wn.2d at 21 (quoting Presbytery, 114 Wn.2d at 330 and citing Lawton v. Steele, 152 U.S. 133, 14 S. Ct. 499, 38 L. Ed. 385 (1894)); see also Goldblatt v. Town of Hempstead, 369 U.S. 590, 594-95, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962) (applying due process analysis); Asarco, Inc. v. Dep’t of Ecology, 145 Wn.2d 750, 762, 43 P.3d 471 (2002) (same); Christianson v. Snohomish Health Dist., 133 Wn.2d 647, 661, 946 P.2d 768 (1997) (same); Guimont v. Clarke, 121 Wn.2d 586, 609, 854 P.2d 1 (1993) (same); Robinson v. *253City of Seattle, 119 Wn.2d 34, 55, 830 P.2d 318 (1992) (same); Orion Corp. v. State, 109 Wn.2d 621, 646-47, 747 P.2d 1062 (1987) (same); W. Main Assocs. v. City of Bellevue, 106 Wn.2d 47, 52, 720 P.2d 782 (1986) (same); Cougar Bus. Owners Ass’n v. State, 97 Wn.2d 466, 477, 647 P.2d 481 (1982); City of Seattle v. Ford, 144 Wash. 107, 111, 257 P. 243 (1927).

¶56 Here Tiffany claims the $364,939 assessment was “unduly oppressive.” This involves consideration of (a) the nature of the harm to be avoided, (b) the economic loss suffered by the property owners, and (c) the availability and effectiveness of less drastic measures. Sintra, 119 Wn.2d at 22; Presbytery, 114 Wn.2d at 331. In Sintra we concluded a $219,000 fee to develop a $670,000 piece of property was unduly oppressive. Sintra, 119 Wn.2d at 22-24. In Guimont we concluded although an unconstitutional taking had not transpired, the mobile home relocation assistance act, chapter 59.21 RCW, which required a park owner to contribute money toward a tenant’s relocation costs constituted a deprivation of the owner’s property without due process because the scheme was unduly oppressive. 121 Wn.2d at 608-13. And we have firmly held, exactly on point, an assessment in excess of special benefit deprives the owner of his property without due process. Heavens, 66 Wn.2d at 564.

¶57 Here a similar result must follow since the owner is assessed $364,939 for street improvements which render him virtually no “special benefit,” i.e., the value of his property was not enhanced by the public improvements.

¶58 Once again this is not a collateral attack on the assessment, but rather the legal consequence of the assessment. The assessment stands, but it is this assessment which deprives Tiffany of its property absent substantive due process.

III. Conclusion

f59 The final LID assessment on Tiffany’s property in the amount of $364,939 works both an uncompensated *254taking of property and a deprivation of property, violating recognized substantive due process criteria. A final assessment in excess of special benefit does not bar a claim for just compensation; it mandates it under article I, section 16 of the state constitution. Moreover, 42 U.S.C. § 1983 provides a federal remedy for an uncompensated taking as well as a due process violation.

¶60 I dissent.

I assume for the purpose of this opinion the city satisfied its legal duty to notify Tiffany by mailing to the wrong address.

The notice of appeal to the superior court must be filed within 10 days of the city council’s confirming the assessment by ordinance. ROW 35.44.210.

The statute reads in relevant part:

Whenever any assessment roll for local improvements has been confirmed by the council, the regularity, validity, and correctness of the proceedings relating to the improvement and to the assessment therefor, including the action of the council upon the assessment roll and the confirmation thereof shall be conclusive in all things upon all parties.

RCW 35.44.190 (emphasis added).

We have since noted, without deciding, a 3, 6, or 10 year period may apply to regulatory takings. See Orion Corp. v. State, 109 Wn.2d 621, 634-35, 747 P.2d 1062 (1987). Under any of these standards, Tiffany’s claim is timely.

RAP 9.12 provides the following:

On review of an order granting or denying a motion for summary judgment the appellate court will consider only evidence and issues called to the attention of the trial court. The order granting or denying the motion for summary judgment shall designate the documents and other evidence called to the attention of the trial court before the order on summary judgment was entered. Documents or other evidence called to the attention of the trial court but not designated in the order shall be made a part of the record by supplemental order of the trial court or by stipulation of counsel.

This statute reads as follows:

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 *251the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be hable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983.

We should note that a due process violation may also occur through arbitrary or irrational executive action, although that is not the claim here. See Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 970, 954 P.2d 250 (1998).