Metropolitan Park District v. State

Horowitz, J.

(dissenting) — The court rejects the State’s contention estoppel does not apply to prevent the State from enforcing the use deed restrictions required by RCW 79.08.080. The use deed in conformity with the statute provides:

The use of the foregoing property is conveyed for municipal park and playground purposes only. This conveyance shall remain in full force and effect only for such period as the grantee shall continue to hold, use, and maintain the property for municipal park and playground purposes. Should the grantee cease to use the property for such purposes or permit the use of the property, or any portion of it, for any other purpose, the grantor may enter and terminate the grantee’s use.

(Italics mine.)

The State does not contend the facilities provided violated the italicized restrictions. The State contends, rather, *830the Park District and its lessee Tacoma Yacht Club violated those restrictions when the club, with the authority of the park board, erected a private clubhouse on the use deed land for the benefit of its members and such others as the club, in its discretion, permitted. To support its contention the club is a private one, the State relies heavily upon articles 5 and 6 of the club by-laws dealing with membership requirements pertinent parts of which are set forth in the margin.1

The State points out the club’s by-laws permit members to be selected in such a way as to either keep out or *831discourage from applying, those persons the membership does not like for whatever reason. A single negative vote by any club member renders the applicant, no matter how worthy, ineligible for membership.

Such membership requirements are capable of masking statutorily prohibited discrimination. RCW 49.60.010 states:

The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of race, creed, color, national origin, sex, marital status, age, or the presence of any sensory, mental, or physical handicap are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state.

Moreover, RCW 49.60.030 creates as a civil right

(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;

Only an active member may vote and active membership is restricted to male members. Article 5, section 3 (a).

The park board and club contend in practice, however, club members and nonmembers have essentially the same privileges; that the club practices no discrimination, actual or covert. Furthermore, the club lease, from the park board dated July 1,1964, expressly provides in paragraph 5 (6):

Second party (club), in the use of said premises, shall *832not discriminate against any person because of race, creed, color, or national origin.

The State responding argues this provision does not make the club any less a private club; that the club’s bylaws do not permit any member of the public to be accepted for membership without the overhanging threat of a blackball by a single member for whatever reason. Moreover, the State points out the club voluntarily applied for and obtained a class H liquor license to serve liquor by the drink to members and their guests; that such a license is illustrative of the club’s private character whether or not in other respects it maintains that character in practice.

The majority opinion does not state it disagrees with the State’s contention the control of the park and playground purposes if given to a private club with the membership restriction described, constitutes a violation of the use deed restrictions. Instead, the majority opinion agrees with the park board and club that the State is estopped to enforce the use deed restrictions imposed pursuant to RCW 79.08.080.

The estoppel is said to arise because the Governor’s committee charged by RCW 79.08.080 with the responsibility for making recommendations to the Governor on whether the use deed should be given to the park board, knew, or should have known, the park board intended to permit the Tacoma Yacht Club to use the use deed property for a clubhouse in aid of the club’s program and made no objections to the private character of the club and its private club membership requirements. The park board and club contend they thereafter relied in good faith upon the continued validity of the use deed; that in so relying the club, with no objection from the park board or the State, incurred substantial mortgage indebtedness and expense which would not have otherwise been incurred; that this prejudicial change of position requires the State be es-topped to now cancel the use deed.

The difficulty with applying the estoppel claimed as *833against the State is that legally justifiable reliance is lacking here. Leonard v. Washington Employers, Inc., 77 Wn.2d 271, 280-81, 461 P.2d 538 (1969). The court there said:

Not all those who rely upon another’s conduct or statements may raise an estoppel. Rather, it is only those who have a right to rely upon such acts or representations
. . . [Ajbsent fraud or misrepresentation, estoppel runs in favor only of those who have reasonably relied on another’s conduct or declarations.

State v. Northwest Magnesite Co., 28 Wn.2d 1, 24, 182 P.2d 643 (1947), when holding that an erroneous opinion on the law expressed by a public official was not sufficient to create an estoppel, stated: “[S]uch expression of opinion as to the law, the facts being equally well known to both parties, cannot preclude the state from asserting the true effect of the statutes . .

In the instant case, during the negotiations leading up to the gift of the use deed to the park board, the State and the park board were each represented by counsel. In the earlier lease negotiation between the park board and the club, each party was also represented by counsel. All attorneys were able and experienced. Each of the represented parties was charged with knowledge of the meaning of RCW 79.08.080 and the use deed restrictions. The park board and the club knew, or should have known, the State had no power to convey State lands governed by RCW 79.08.080 for use by a private club with private club restrictive membership requirements such as those contained in articles 5 and 6 of its by-laws. The rationale of the following cases support this view. Lancaster v. Columbus, 333 F. Supp. 1012 (N.D. Miss. 1971); Fairhope Single Tax Corp. v. Fairhope, 281 Ala. 576, 206 So. 2d 588 (1968); Norton v. Gainesville, 211 Ga. 387, 86 S.E.2d 234 (1955); Lincoln Park Traps v. Chicago Park Dist., 323 Ill. App. 107, 55 N.E.2d 173 (1944); Board of Mayor & Aldermen v. Wilson, 232 Miss. 435. 99 So. 2d 674 (1958); Gallagher v. Omaha, 189 Neb. *834598, 204 N.W.2d 157 (1973); Nebraska City v. Nebraska City Speed & Fair Ass’n, 107 Neb. 576, 186 N.W. 374 (1922).

Moreover, they knew or should have known that as against the State it was beyond the power of any private citizen or public official to change the statute or abrogate the provisions of the use deed by interpretation or otherwise, and either intentionally or by mistake. See State v. Northwest Magnesite Co., supra.

The fact that the private club also permits its facilities to be,used by the public generally, or for purposes which fall within the statutory use restrictions imposed upon the property, makes no difference. Lincoln Park Traps v. Chicago Park Dist., supra.

It does not follow, however, that because estoppel is unavailable here, cancellation of the use deed must follow. The evidence shows that for many years before the issuance of the use deed in 1965, the park board and its lessee, Tacoma Yacht Club, enjoyed a relationship characterized by the genuine desire of the park board and club to render a maximum service to the public, the park board itself was financially unable to render. Significantly, according to the record, the Tacoma Yacht Club, while retaining its restrictive by-law membership requirements, appears to have made a conscientious effort in good faith not to exclude anyone from membership who was morally entitled thereto upon payment of the required reasonable initiation fee and dues. So far as the record shows, except for liquor service, the facilities of the club have been made available to nonmembers as well as members on substantially equal terms. There is no evidence the Governor’s committee with actual or constructive knowledge of the club’s membership requirements considered or told the park board those requirements violated the use deed restrictions. There is little question the park board and the club, in good faith, although mistakenly, believed the use deed restrictions had not been breached and that in reliance on the continued *835validity of the use deed the club substantially changed its position by incurring large mortgage indebtedness and expense in building its new club house and improving the club facilities. Under these circumstances, to deny the validity of the use deed would promote gross inequity even though the defense of estoppel is unavailable.

If estoppel is -inapplicable, a court of equity may still fashion its decree to eliminate inequitable hardship in the furtherance of public interest. This can be done by applying the long-recognized doctrine of equitable conditions, imposed pursuant to the maxim that he who seeks equity must do equity. See Seattle v. P.B. Inv. Co., 11 Wn. App. 653, 524 P.2d 419 (1974) in which the court stated at pages 664-65:

[Sjhould the trial court determine that the strict elements of equitable estoppel are not present, it may consider whether or not relief might be granted to P. B. Investment under the maxim, “He who seeks equity must do equity.” Thus, the trial court may deem it appropriate to impose conditions upon its grant of equitable relief to the City.

See generally H. McClintock, Principles of Equity § 25 (2d ed. 1948); 30 C.J.S. Equity §§ 90-92 (1965).

Each party seeks equitable relief. The park board and its lessee, the Tacoma Yacht Club, are cooperating to seek injunctive relief against the State’s cancellation of the use deed. The State seeks a decree upholding its cancellation of the use deed. Alternatively, the State prays that if cancellation is not upheld, the court enter an order requiring the park board exercise its rights in use deed property solely for públic park purposes.

I would conditionally grant the injunctive relief sought (and also grant the State’s alternative prayer for relief) as a proper application of the doctrine of equitable conditions to insure fair access without discrimination to all who wish to make use of the use deed property for “municipal park and playground purposes.” I would also remand this case for further hearing, upon notice to the interested parties, to *836determine the precise conditions to be imposed with respect to membership by-law requirements and the use of facilities in conformity with this opinion.

Stafford, C.J., and Brachtenbach, J., concur with Horowitz, J.

Petition for rehearing denied January 9, 1976.

Article 5, Membership, Fees and Dues, provides in part:

“Section 1. Membership of all classes shall be by invitation only. Any male or female person, who is a citizen of the United States or of a friendly country at peace with the United States, over the age of twenty-one (21) years, of good moral character, may be extended an invitation to join this Club.

“Section 3. (a) Active Membership shall consist of male members of at least twenty-one years of age who are the bona fide owners of at least a half interest in any vessel. . . . Active Members shall pay an initiation fee of Two Hundred Dollars ($200.00) and any State or Federal Tax. Thereafter dues shall become payable ... at the rate of Forty-Two Dollars ($42.00) per annum. Active Members shall be the voting members of this Club . . .

“(d) Associate Membership. Persons with, or without boat ownership, but otherwise qualified to be Active Members, may be invited to Associate Membership. Associate Members shall be entitled to the privileges of the Club House, grounds, and to the social activities of the Club, but shall not be eligible to attend business meetings except as the guest of an Active Member, or to vote, or to moorage privileges or the Club Pennant. Associate Members shall pay an initiation fee of One Hundred Dollars ($100.00) and dues in the same amount, time and manner as Active Members. . . .”

Article 6, Invitations for Membership, provides in part:

“Section 1. Invitees for all classes of membership must be proposed in writing by one member and seconded by another, on suitable invitation forms provided by the Club. Except that no Invitee for Active Membership shall be considered or admitted to membership unless his sponsor shall certify that he has introduced the invitee at at least one meeting of the Club, either General or Dinner Discussion Meeting, and recorded by the Secretary or Presiding Officer, and shall be within three months next preceding the proposal. The introduction, when necessary, may be omitted by action of the Board of Trustees. *831The name of the proposed Invitee, together with the name of his sponsor and second shall be posted on the bulletin board at the Club House for at least two weeks before any action may be taken by the Board of Trustees.

“Section 2. As soon as the written proposal, so signed and certified, is received, it shall be referred to the Membership Committee which shall conduct a careful investigation into the desirability of the proposed Invitee from all standpoints and report in writing to the Board of Trustees.

“Section 3. When the requirements of Sections 1 and 2 of this Article have been fulfilled, the Board of Trustees shall invite the proposed Invitee to membership by an unanimous vote, refer it to a committee appointed by the Commodore, or back to the Membership Committee for further investigation, or reject it.”