Mission Springs, Inc. v. City of Spokane

Sanders, J.

Mission Springs, Inc.¹ commenced this civil rights action against the City of Spokane and local officials pursuant to RCW 64.40 and 42 U.S.C. § 1983 for alleged wrongful refusal to process a grading permit. The trial court dismissed all claims on summary judgment; however, on direct review, we reverse and remand.²

I. The Issue

The ultimate issue is whether a municipality may withhold a ministerial land use permit for reasons extraneous to the satisfaction of lawful ordinance and/or statutory criteria. We hold it may not and recognize RCW 64.40 and 42 U.S.C. § 1983 provide a remedy.

II. Facts

Those facts important to the resolution of the issue at hand are not seriously disputed.

On August 31, 1992 the Spokane City Council adopted Ordinance No. C-30529 approving Mission Springs’ application for a planned unit development (PUD) comprised of 790 apartment units located within approximately 33³ separate buildings. This final approval followed submittals by the developer setting forth the nature of the proposed development in sufficient detail to enable the city council to affirmatively determine pursuant to RCW 58.17.110 that the development made adequate provision for “the public health, safety, and general welfare and for such open spaces, drainage ways, streets or roads, alleys, other public ways, transit stops, potable water supplies . . . .”, etc. RCW 58.17.110(2)(a). The record shows a public hearing was held on November 5, 1991, Clerk’s Papers (CP) at 202, wherein evidence was taken on these matters. Thereafter the hearing examiner concluded on November 25, 1991 that the PUD application should be granted, subject to various conditions. CP at 202.

The record also demonstrates it was well known to the developer and local government officials the addition of a 790-unit apartment complex at this location would necessarily cause a predictable increase in traffic upon adjacent roads and highways subsequent to ultimate construction and occupancy. That this factor was fully considered by all concerned there can be no doubt as the developer submitted a traffic study detailing the likely traffic increase as a result of the apartment build-out with specific reference to the likely routes of travel. See CP at 245, 304 (describing 1991 traffic impact study). We also note that it was known, or should have been known, to all concerned as of the date of final approval on August 31, 1992, the developer was statutorily vested with the legal right to build out the planned improvements identified in the PUD for a period of five years under the ordinances, statutes, and regulations in effect at the time of the August 1992 approval “unless the legislative body finds that a change in conditions creates a serious threat to the public health or safety in the subdivision.” RCW 58.17.170. No such finding, however, was ever made.

Mission Springs obtained grading and building permits for the project by early 1993 but, for reasons of its own, did not utilize them prior to their expiration in May 1994. However, in October 1994, Mission Springs submitted a new application for a grading permit in identical form to the old one containing all components⁴ required by Spokane Municipal Code (SMC) 4.03.020 (repealed and superseded by art. 8, ch. 11.02, ord. C-31607 (1996)). This code applies not only to grading permits but building permits as well as several other types of permits.

On June 22, 1995⁵ Mr. Irv Reed, Spokane’s building officer, briefed the Spokane City Council:

We are ready to issue the grading permit. The legal department has reviewed the process. We have completely gone through it and we’re ready to issue the grading permit.[⁶]

CP at 75.

Notwithstanding, the City withheld the grading permit several months.⁷ The circumstances pertaining to refusal to issue this permit are largely detailed in the transcript of the June 22, 1995 council meeting which followed Mr. Reed’s introductory remarks and comprise the gravamen of Mission Springs’ complaint.

It appears Mission Springs was given no notice that its project would even be the subject of discussion at the June 22 meeting, thus it had no reason to attend and did not attend. CP at 74. However, project opponents had apparently been notified by the City Council that such a meeting would take place as Mayor Geraghty opened the meeting by stating “I know some people are here to hear what the current status of the Mission Springs thing is.” CP at 75. The Mayor clarified that only “phase one” of the project was ready to proceed and that phase one involved only 193 units divided between 8 buildings housing 24 units each. CP at 76. It was also established from the outset that the Department of Transportation and the developer were in agreement that this phase should proceed. As City Council Member Holmes stated, “And it’s between them and DOT, it has nothing to do with us.” CP at 78.

Building Official Bob Eugene reported that although there was a potential deficiency in 16-foot roadway tunnels under nearby railroad rights-of-way, “the tunnels are adequate to service the traffic that will be generated from the project.”⁸ CP at 81. The record also references a statement by City Council Member Anderson that a neighborhood opposition group had been formed which had hired an attorney to (presumably) fight the project. CP at 85. Various aspects of the project were discussed at which point the Mayor stated, “The question was whether council has any action that it can do at this point.” CP at 89. From there the following dialogue ensued:

[Council Member Phyllis] Holmes: If we were to direct Bob [Eugene] not to issue permits until the tunnels were improved, what would happen?

[City Attorney James] Sloane: What would happen is that it would be the genesis of a cause of action by the developer against the city for unlawfully interfering with the issuance of a building permit and that is essentially the same basis that we’re presently in federal court on, a civil rights violation. The other issue is that it’s a charter violation.

A person: It’s a charter violation?

[City Attorney] Sloane: It’s a charter violation.

A person: How so?

[City Attorney] Sloane: The council has no administrative authority by the terms of the city charter. The council acts through ordinances and set[s] policy. The city administrative staff is charged with following ordinances. The property owner is entitled to—a right to rely on the vested right he has at the time he files his building application, to have it considered under the existing legislative scheme and an effort to change that scheme is a violation of due process.

[Council Member] Holmes: Well, I’m going to put a motion on the table and see where we go with this. I’m going to move

that we request a current staff report on the traffic impact on the Thorpe tunnels of the additional units based on current traffic use. If there are any studies that we have would be old [sic] and we delay issuance of that permit until that report has been brought forward to the county.

[Council Member] Anderson: I’ll second that.

Mayor Geraghty: We have a motion seconded. I’m inclined to support this, but I want to know what the downside is.

[City Attorney] Sloane: The downside, looking at the traffic issue separately for a moment, if the rules are that when a property owner comes forward with a request for a building permit, he’s entitled to have his project considered under the rules that are in place at the time he filed his application. When a project has progressed to the extent that the Thorpe Road project has proceeded, most of those issues, if not all of those issues, have been resolved. The one that we have identified here is the wetlands, the four subsequent phases. Any interference with the issuance of a building permit when a property owner is entitled to that building permit gives rise to a claim under state law and under federal law. It is essentially the same claim that was made by Mr. Ronald with regard to the Ronald property. At this point the issue of traffic I believe has been resolved and Mr. Ramsey and Mr. Eugene are here and they can speak to the specifics of it, but I believe that’s the case with regard to the Mission Springs project.

[Council Member] Anderson: You know, I guess I would add that, you know, with all due respect I think we owe an obligation to the other members of the community who have serious concerns about the traffic problems up in that area .... I guess too my feeling is, and I think this is a great motion. We have the opportunity to put a stop to this and let’s just see what happens. Let’s see how confident they are. If they bring a suit, we can always turn around and issue the permit, that’s an option still available to us.

Mayor Geraghty: At the moment did your motion cover grading permit or the building permit?

[Council Member] Holmes: Any permits, it did not specify

CP at 89-94 (emphasis added). The motion carried unanimously. As a direct and proximate result of this city council motion, City Manager Roger Crum and his subordinates refused to further process or issue the grading permit until after August 14, 1995, the date the City Council* 234⁹ rescinded its prior directive. CP at 383.

On July 3, 1995 Mission Springs filed its complaint seeking money damages and injunctive relief pursuant to RCW 64.40.020¹⁰ and 42 U.S.C. § 1983.¹¹ The City of Spokane, the Spokane City Council, City Manager Roger Crum, Mayor Jack Geraghty, and each member of the City Council, plus their spouses, were named defendants although council defendants Barnes and Crosby, who did not participate in the council meeting, were named in their “official capacity” only. Plaintiffs later attested the delay attributable to the city council action caused the developer damage plus attorney fees. CP at 490.

Ultimately all defendants moved for summary judgment of dismissal whereas plaintiffs sought summary judgment striking claims of absolute legislative immunity and for a declaration that the City Council had violated the city charter. The trial court dismissed all claims on summary judgment. This appeal, and direct review by this court, follows.

III. Legal Analysis

As previously recounted, the process for PUD approval and build-out is set forth in RCW 58.17. These requirements are often supplemented by local ordinance. Final approval of the PUD represents a final determination by the local unit of government that the proposal satisfies all applicable statutory and ordinance requirements. RCW 58.17.195 (“No plat or short plat may be approved unless the city, town, or county makes a formal written finding of fact that the proposed subdivision or proposed short subdivision is in conformity with any applicable zoning ordinance or other land use controls which may exist.”). It is also essential to recall PUD approval entitles the applicant to build out to previously approved specifications within five years of the date of approval as a matter of vested legal right based upon the same ordinances which were in effect as of the date the final approval had been obtained¹² “unless the legislative body finds that a change in conditions creates a serious threat to the public health or safety in the subdivision.” RCW 58.17.170. The analysis here is quite simple since no relevant laws changed during the period in question and no finding was made by the legislative body as referenced in the cited statute.

Without material dispute of fact it appears these defendants abrogated Mission Springs’ right to obtain issuance of a grading permit when the City Council acted to deny issuance of this or any permit and the City Manager acquiesced in the council’s demands.

That the City Manager willfully withheld the permit from issuance upon, or in prevention of, satisfaction of ordinance criteria during the June through August 1995 period upon the motion of the City Council is not disputed. Nor is it denied the City Council acted contrary to the legal advice of its own city attorney, and did so in no uncertain terms.

The issue here is not whether or not the Spokane City Council can lawfully request its city manager to perform at municipal expense such additional studies as it may see fit but rather is whether the statutory and constitutional rights of Mission Springs were violated when its right to obtain this grading permit upon satisfaction of ordinance criteria was abrogated pending the completion of such additional studies.

This question of lawful entitlement is in no way dependent upon the actual length of time that the permit was withheld. Whether the delay was short or long the question remains, “Was the delay lawful, or was it unlawful?” See Elsmere Park Club Ltd. Partnership v. Town of Elsmere, 771 F. Supp. 646, 650 (D. Del. 1991) (Town council’s stalling of issuance of permit after developer complied with statutory requirements “constituted unlawful delay in violation of substantive due process.”); Marathon Oil Co. v. Lujan, 751 F. Supp. 1454, 1464 (D. Colo. 1990) (Where Department of Interior had a duty to issue mineral patents upon mining company’s satisfaction of statutory requirements, “[plaintiffs’ rights are effectively denied by Departmental delay.”), aff’d in part, rev’d in part by 937 F.2d 498 (10th Cir. 1991); Broward County v. Narco Realty, Inc., 359 So. 2d 509, 511 (Fla. Dist. Ct. App. 1978) (When developer met all legal requirements for obtaining plat approval “the county had no discretion to refuse . . . .”); Pokoik v. Silsdorf, 40 N.Y.2d 769, 358 N.E.2d 874, 876, 390 N.Y.S.2d 49, 51 (1976) (Where village council delayed issuance of building permit after developer satisfied all statutory criteria, such “ ‘administrative procrastination, calculated to deny a property owner his right to use this land in a currently lawful manner, is supportable neither by law nor by sound and ethical practice.’ ”) (citations omitted).

In the eyes of the law the applicant for a grading permit, like a building permit, is entitled to its immediate issuance upon satisfaction of relevant ordinance criteria and the State Environmental Policy Act of 1971.¹³ Juanita Bay Valley Community Ass’n v. City of Kirkland, 9 Wn. App. 59, 84, 510 P.2d 1140 (“[W]e see no rational distinction between building or conditional use permits and a grading permit.”), review denied, 83 Wn.2d 1002 (1973); Norco Constr., Inc. v. King County, 97 Wn.2d 680, 684, 649 P.2d 103 (1982) (“Our vested rights rule also has been applied to ... a grading permit. . . .”). Issuance of such a permit is not a matter of discretion but is ministerial. State ex rel. Craven v. City of Tacoma, 63 Wn.2d 23, 27, 385 P.2d 372 (1963) (“[T]he acts called upon by relators to be done when they asked for a building permit under the city zoning regulations and building code were not discretionary but ministerial. . . Once [the proposed structure complies with zoning regulations] and the appropriate fee tendered by the applicant, the building department must issue the building permit.”); State ex rel. Ogden v. City of Bellevue, 45 Wn.2d 492, 275 P.2d 899 (1954):

A building or use permit must issue as a matter of right upon compliance with the ordinance. 9 Am. Jur. 203, § 7. The discretion permissible in zoning matters is that which is exercised in adopting the zone classifications with the terms, standards, and requirements pertinent thereto, all of which must be by general ordinance applicable to all persons alike. The acts of administering a zoning ordinance do not go back to the questions of policy and discretion which were settled at the time of the adoption of the ordinance. Administrative authorities are properly concerned with questions of compliance with the ordinance, not with its wisdom. To subject individuals to questions of policy in administrative matters would be unconstitutional.

Id. at 495.

The identical legal considerations which govern building and grading permits are especially apparent in the City of Spokane where the municipal code expressly stated as much. SMC 4.03.020 (repealed and superseded by art. 8, ch. 11.02, ord. C-31607 (1996)).

Simply put, neither a grading permit, building permit, nor any other ministerial permit may be withheld at the discretion of a local official to allow time to undertake a further study.¹⁴ The Spokane City Council received well-founded legal advice from its City Attorney which it chose to disregard.

Therefore we have rather a straightforward situation where clear legal rights of the citizen were violated by city council members acting in excess of their lawful authority and by a City Manager acting in excess of his own lawful authority but at the urging of the City Council.

As one lawyer once put it, “What is to be done?”

RCW 64.40

RCW 64.40.020 creates a cause of action for damages to obtain relief from acts of an agency which are arbitrary, capricious, unlawful, or exceed lawful authority. A county is an agency for the purpose of this statute. RCW 64.40.010(1); Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 117, 119, 829 P.2d 746 (1992), cert. denied, 506 U.S. 1079, 113 S. Ct. 1044, 122 L. Ed. 2d 353 (1993). “[C]onclusory action taken without regard to the surrounding facts and circumstances is arbitrary and capricious . . . .” Hayes v. City of Seattle, 131 Wn.2d 706, 717-18, 934 P.2d 1179, 943 P.2d 265 (1997).

The City of Spokane, acting through its City Council and/or its City Manager, arbitrarily refused to process Mission Springs’ grading permit application and unlawfully withheld the permit as well. Its action was “ ‘ “willful and unreasoning action, taken without regard to or consideration of the facts and circumstances surrounding the action,” ’ ” id. at 718 (quoting Kendall v. Douglas, Grant, Lincoln & Okanogan Counties Pub. Hosp. Dist. No. 6, 118 Wn.2d 1, 14, 820 P.2d 497 (1991)) (citations omitted), because it acted without lawful authority in unreasoning and willful disregard of the permit applicant’s lawful entitlements.

42 U.S.C. § 1983

A similar result must follow under 42 U.S.C. § 1983. A prima facie case under 42 U.S.C § 1983 requires the plaintiff to show that a person, acting under color of state law, deprived the plaintiff of a federal constitutional or state-created property right¹⁵ without due process of law.

Mission Springs had a constitutionally cognizable property right in the grading permit it sought. The right to use and enjoy land is a property right. State ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S. Ct. 50, 73 L. Ed. 210, 86 A.L.R. 654 (1928); Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987); West Main Assocs. v. City of Bellevue, 106 Wn.2d 47, 50, 720 P.2d 782 (1986) (“ ‘Although less than a fee interest, development rights are beyond question a valuable right in property.’ ” (quoting Louthan v. King County, 94 Wn.2d 422, 428, 617 P.2d 977 (1980))); Ackerman v. Port of Seattle, 55 Wn.2d 400, 409, 348 P.2d 664, 77 A.L.R.2d 1344 (1960) (“ ‘Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment and disposal.’ ” (Citations omitted.) (quoting Spann v. City of Dallas, 111 Tex. 350, 355, 235 S.W 513, 19 A.L.R. 1387 (1921))).

Moreover, procedural rights respecting permit issuance create property rights when they impose significant substantive restrictions on decision making. Bateson v. Geisse, 857 P.2d 1300, 1304-05 (9th Cir. 1988) (“[A] statutory scheme which placed ‘significant substantive restrictions’ on the decision to grant a permit or license would be sufficient to confer due process rights.”); Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994) (Procedural permitting requirements may transform a unilateral expectation into a property interest “ ‘if the procedural requirements are intended to be a ‘significant substantive restriction’ on . . . decision making.’ ”) (quoting Goodisman v. Lytle, 724 F.2d 818, 820 (9th Cir. 1984)); Parks v. Watson, 716 F.2d 646 (9th Cir. 1983) (same); Jacobson v. Hannifin, 627 F.2d 177, 180 (9th Cir. 1980) (property interest is created where discretion to deny the permit or license is limited).

This situation must be analyzed under well-established due process criteria as distinguished from that associated with taking property without just compensation. The Fourteenth Amendment provides “nor shall any state deprive any person of life, liberty, or property without due process of law.” By reference through the Fourteenth, the Fifth Amendment distinguishes between deprivations of property for want of due process on the one hand and takings without just compensation on the other. See Fifth Amendment to the United States Constitution (“. . . nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”). The criteria to establish a taking are “quite different” from that required to establish a deprivation of property for want of due process, and the Supreme Court has instructed there is “no reason” to believe they are the same. Nollan, 483 U.S. at 835 n.3.

The talisman of a taking is government action which forces some private persons alone to shoulder affirmative public burdens, “which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 1569, 4 L. Ed. 2d 1554 (1960); Nollan, 483 U.S. at 835 n.4; see also San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 656, 101 S. Ct. 1287, 1306, 67 L. Ed. 2d 551 (1981) (Brennan, J., dissenting); Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 123, 98 S. Ct. 2646, 2658, 57 L. Ed. 2d 631 (1978). The conduct here does not suggest that appropriative governmental action of which the Fifth Amendment Takings Clause speaks but rather rings of deprivation of property through arbitrary interference with that process lawfully due. Certainly it has no similarity to a so-called “private taking” whereby the government attempts to directly, or even indirectly, appropriate private property for private use. Compare, e.g., Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 104 S. Ct. 2321, 81 L. Ed. 2d 186 (1984) (appropriating landed estates for resale to private parties); In re Petition of Seattle, 96 Wn.2d 616, 638 P.2d 549 (1981) (condemnation of Westlake Mall property for private use improper); Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (“Erivate takings” claim should be reviewed under Fifth Amendment takings analysis, not Fourteenth Amendment substantive due process analysis.). Thus we follow that overwhelming body of authority which applies Due Erocess principles to similar factual situations.

A cause of action for deprivation of property without due process is ripe immediately because the harm occurs at the time of the violation as does the cause of action. See Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983, 108 L. Ed. 2d 100 (1990) (“[T]he constitutional violation actionable under § 1983 is complete when the wrongful action is taken.”); Rutherford v. City of Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986) (substantive due process violated at moment harm occurs); Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 21 n.11, 829 P.2d 765 (“[A]n action for a violation of substantive due process is ripe immediately . . . because the harm occurs at the time of the violation.”) (citing Bateson, 857 F.2d at 1303), cert. denied, 506 U.S. 1028, 113 S. Ct. 676, 121 L. Ed. 2d 598 (1992); Cox v. City of Lynnwood, 72 Wn. App. 1, 8, 863 P.2d 578 (1993) (substantive due process is violated at the moment harm occurs).

SMC 4.03.020 permits no delay in the issuance of a building or grading permit while the municipality rethinks plat approval which it had granted years previously. City council members who improperly interfere with the process by which a municipality issues permits deprive the permit applicant of his property absent that process which is due. Bateson, 857 F.2d at 1303; Blanche Road Corp. v. Bensalem Township, 57 F.3d 253, 267-68 (3d Cir.) (deliberate and improper interference with the process by which the township issues permit established substantive due process violation even if permits were ultimately issued), cert. denied, 516 U.S. 915, 116 S. Ct. 303, 133 L. Ed. 2d 208 (1995); Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir.) (improper interference with the process by which municipality issues building permit is arbitrary and violates substantive due process), cert. denied, 488 U.S. 868, 109 S. Ct. 176, 102 L. Ed. 2d 145 (1988); Scott v. Greenville County, 716 F.2d 1409, 1419 (4th Cir. 1983) (county council’s intervention in administrative issuance process of a building permit violates due process).

Had the City Council repealed the earlier ordinance approving the FUD upon an appropriate finding of changed circumstance, we might have a different situation. But it did not. Nor do we here consider a delay occasioned by foot dragging or inefficiency. Rather this claim puts at issue a purposeful abrogation of mandatory process which would otherwise result in permit issuance.

The City Council’s action was the moving force of the constitutional violation, the official policy of the municipality, and the proximate cause of the City Manager’s decision to suspend processing of the permit. Compare Bateson, 857 F.2d at 1303 (those who are “the moving force of constitutional violation” are liable under § 1983). Thus, Mission Springs’ claim is properly cast as a civil rights action for precisely the same reasons liability was imposed under 42 U.S.C. § 1983 against individual council members under nearly identical, if not less aggravated, circumstances in Bateson.

Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988) is the leading and controlling case in this area.¹⁶ Bateson is literally on all fours, if not somewhat less factually aggravated, than what we have here. Bateson, a self-employed builder, submitted a building permit application to the city of Billings, Montana. The application facially complied with building permit ordinance requirements. Nevertheless, the city council initiated a zone change to prevent Bateson from further processing or obtaining his permit to build the proposed project. The Billings City Attorney advised the city council that

if the city act[ed] to deny the building permit or to initiate rezoning to make the proposed project improper or illegal, there [would be a] substantial probability that the Court would overturn that action. There [would also be] a substantial risk that the Court would hold the city liable for damages resulting from delay of the project.

Bateson, 857 F.2d at 1302.

Nevertheless the city council voted to withhold Bateson’s building permit notwithstanding satisfaction of all ordinance requirements. Thereupon Bateson, like Mission Springs, commenced suit alleging a cause of action for deprivation of his constitutional rights pursuant to 42 U.S.C. § 1983, specifically asserting he had been deprived of his property without due process, and, moreover, that his property had been taken without just compensation. The United States District Court held the city council’s decision to withhold a building permit violated his right to substantive due process and imposed personal liability on the individual council members. The United States Court of Appeals for the Ninth Circuit affirmed, holding:

As of June 26, 1984, Bateson had met all of the requirements necessary for the City to issue him a building permit. The City of Billings’ regulations provide that once an applicant’s building plans comply with the code and other applicable laws and the fees are paid, the building official must issue a building permit to the applicant. These regulations do not provide for review by the City Council before a building permit can issue. The City Council voted to withhold Bate-son’s building permit without providing Bateson with any process, let alone “due” process. This sort of arbitrary administration of the local regulations, which singles out one individual to be treated discriminatorily, amounts to a violation of that individual’s substantive due process rights.

Bateson, 857 F.2d at 1303 (citations omitted). The court went further to note the action of the city council members

caused Bateson’s injury because it was “the moving force of the constitutional violation.” City of Oklahoma v. Tuttle, 471 U.S. 808, 819-20, 105 S. Ct. 2427, 2434, 85 L. Ed. 2d 791 (1985), quoting Polk Co. v. Dodson, 454 U.S. 312, 326, 102 S. Ct. 445, 454, 70 L. Ed. 2d 509 (1981). “[T]he requisite causal connection can be established not only by some kind of direct personal participation in the deprivation but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Merritt v. Mackey, 827 P.2d 1368, 1371 (9th Cir. 1987), quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

Bateson, 857 F.2d at 1303-04. The United States Court of Appeals rejected the city council members’ claim of absolute or qualified immunity holding:

The council members acted arbitrarily by denying Bateson’s permit when they had no authority to withhold it. At the time they acted, the law was established sufficiently to make their conduct unreasonable. It was established so well, in fact, that City Attorney Tillotson warned them that if they acted to deny the building permit or to initiate rezoning to make the proposed project improper or illegal, there was a substantial probability that a court would overturn that action and hold them liable for the resulting damages due to the project’s delay. The council members ignored clearly established law and their attorney’s advice. They are not shielded from personal liability.

Bateson, 857 F.2d at 1305. Similar facts and identical law mandate the same result. Federal precedent controls our application of federal law. Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 652, 935 P.2d 555 (1997). As in Bateson claims of absolute immunity should be denied and defendants’ liability pursuant to 42 U.S.C. § 1983 established.

Municipal liability for section 1983 purposes attaches when the municipality acts through official policy. Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). An act undertaken by a municipal legislative body is an act of the municipality. Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986). Spokane acted by and through official policy when its City Council passed the subject motion. Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 118, 119, 124, 829 P.2d 746 (1992), cert. denied, 506 U.S. 1079, 113 S. Ct. 1044, 122 L. Ed. 2d 353 (1993). This act was not only that of the individuals, it was the act of the municipality as well. Municipalities enjoy no qualified immunity from suit. Owen v. City of Independence, 445 U.S. 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980); Robinson v. City of Seattle, 119 Wn.2d 34, 64, 830 P.2d 318, cert. denied, 506 U.S. 1028, 113 S. Ct. 676, 121 L. Ed. 2d 598 (1992); Lutheran Day Care, 119 Wn.2d at 118.

Legislative Immunity

However, members of the City Council assert absolute legislative immunity on their own behalf. Notwithstanding, such claims of absolute legislative immunity must be rejected here for the same reason like-claims were rejected under similar circumstances in Bateson. “The Supreme Court ‘has generally been quite sparing in its. recognition of claims to absolute official immunity.’ ” Chateaubriand v. Gaspard, 97 F.3d 1218, 1220 (9th Cir. 1996) (quoting Forrester v. White, 484 U.S. 219, 224, 108 S. Ct. 538, 542, 98 L. Ed. 2d 555 (1988)). “The burden of proof in establishing absolute immunity is on the individual asserting it.” Trevino v. Gates, 23 F.3d 1480, 1482 (9th Cir.), cert. denied, 513 U.S. 932, 115 S. Ct. 327, 130 L. Ed. 2d 286 (1994).

Although a local legislator may vote on an issue, that alone does not necessarily determine that he or she was acting in a legislative capacity. Rather, “[w]hether actions . . . are, in law and fact, an exercise of legislative power depends not on their form but upon ‘whether they contain matter which is properly to be regarded as legislative in its character and effect.’ ”

Cinevision Corp. v. City of Burbank, 745 F.2d 560, 580 (9th Cir. 1984) (quoting Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 2784, 77 L. Ed. 2d 317 (1983)), cert. denied, 471 U.S. 1054, 105 S. Ct. 2115, 85 L. Ed. 2d 480 (1985). Therefore we must look to “the nature of the function performed, not the identity of the actor who performed it,” Forrester, 484 U.S. at 229, when determining whether or not legislative immunity is available. “ ‘[A]n act which applies generally to the community is a legislative one, while an act directed at one or a few individuals is an executive one.’ ” Trevino, 23 F.3d at 1482 (quoting Bateson, 857 F.2d at 1304 (quoting Cinevision, 745 F.2d at 579)). See Durocher v. King County, 80 Wn.2d 139, 152-53, 492 P.2d 547 (1972) (“Actions relating to subjects of a permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative.”). The motion passed by the Spokane City Council was not legislation generally applicable to the entire community but rather an act directed specifically at Mission Springs. It was administrative or executive in nature,¹⁷ not legislative, and therefore legislative immunity is not available here any more than it was under the comparable situation in Bateson. Compare Acierno v. Cloutier, 40 F.3d 597, 612-15 (3d Cir. 1994) (no legislative immunity for enacting ordinance that voided approved recorded development plan because action was administrative in nature).

The trial court also erred when it dismissed Mission Springs’ claims on the merits. Arbitrary or irrational refusal or interference with processing a land use permit violates substantive due process. Bateson, 857 F.2d at 1304; Robinson, 119 Wn.2d at 64; Sintra, 119 Wn.2d at 21; R/L Assocs., Inc. v. City of Seattle, 113 Wn.2d 402, 412, 780 P.2d 838 (1989); Blanche Road Corp. v. Bensalem Township, 57 F.3d 253, 267-68 (3d Cir.), cert. denied, 516 U.S. 915, 116 S. Ct. 303, 133 L. Ed. 2d 208 (1995); Bello v. Walker, 840 F.2d 1124, 1129-30 (3d Cir.), cert. denied, 488 U.S. 868, 109 S. Ct. 176, 102 L. Ed. 2d 145 (1988).

“Irrational” has been defined as “[Unreasonable, foolish, illogical, absurd . . . .” Black’s Law Dictionary 829 (6th ed. 1990). The actions of the City Council were at least two steps removed from that reason which is required. First, the council interjected itself into the administrative process reserved to the City Manager notwithstanding clear and unequivocal charter mandate to the contrary. See Spokane City Charter art. iy § 22 “Administrative Branch.” Second, council members and the City Manager rejected lawful, mandatory requirements for the processing and issuance of grading permits codified in state statute and local ordinance without reasonably tenable lawful justification. Although the irrationality is objectively established by the departure from the mandatory legal process, we note the irrationality is further dramatized by the overt rejection of advice from the City’s own attorney in favor of a defiant course of action well summarized by the comment:

We have the opportunity to put a stop to this and let’s just see what happens. Let’s see how confident they are. If they bring suit, we can always turn around and issue the permit, that’s an option still available to us.

CP at 94. Such was certainly not the process due Mission Springs.

Defendants claim no constitutional deprivation occurred because the permit was ultimately issued. Damage questions are normally determined by the fact finder; however, if plaintiffs prove the elements of a section 1983 action, they are entitled to at least nominal damages for deprivation of their constitutional rights. Carey v. Piphus, 435 U.S. 247, 266, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978); Kalmas v. Wagner, 133 Wn.2d 210, 943 P.2d 1369, 1371 (1997). “[T]he amount of damages plaintiffs may be entitled to is a separate issue from whether defendants’ conduct was arbitrary or unreasonable and therefore violative of due process.” Zaintz v. City of Albuquerque, 739 F. Supp. 1462, 1470 n.13 (D.N.M. 1990). See also, e.g., Hirschfeld v. Spanakos, 871 F. Supp. 190, 195 (S.D.N.Y. 1994) (proof of actual damages irrelevant to establish section 1983 liability).

Conclusion

Mission Springs was entitled to regular administrative processing and issuance of the requested grading permit in accordance with ordinance criteria. The Spokane City Council, contrary to the advice of its own city attorney, deprived the permit applicant of that process lawfully due by instructing its city manager to withhold the permit for reasons extraneous to ordinance, or lawful, criteria. The City Manager did in fact suspend the required process and acceded to the City Council’s demand to withhold the permit without lawful justification, thereby depriving Mission Springs of its property absent the lawful process due under the laws of this State and the ordinances of Spokane. The duration of the deprivation, and the ultimate issuance of the permit after suit had been commenced, does not change the fact that the legal rights of Mission Springs were violated in the first instance.

The trial court’s summary judgment of dismissal is reversed, and the case is remanded for trial consistent with this opinion. Appellants shall recover appellate costs and reasonable attorney fees pursuant to 42 U.S.C. § 1988 and RCW 64.40.020.

Durham, C.J., and Dolliver, Smith, Madsen, and Alexander, JJ., concur.

1 We refer to both appellants collectively by this title and do not attempt to segregate their positions for the purpose of this opinion.

2 Certain defendants asserted counterclaims which were likewise dismissed. We do not reverse dismissal of those counterclaims as no cross-appeal is before us. RAP 5.2(f). We do, however, affirm dismissal of claims against council defendants Barnes and Crosby who did not participate in the fateful council meeting of June 22, 1995, and whose presence in this litigation in only their official capacity is unnecessary.

3 The record does not contain the exact number of buildings within the project, but does reflect that there are 24 units per building.

4 Additional information was also submitted at the City’s request on February 7, 1995. However, the applicant did not further supplement the application prior to permit issuance in November.

5 Some pleadings reference the date of the meeting as June 26, 1995, e.g., Clerk’s Papers (CP) at 73; however, the exact date is not dispositive.

6 See also Building Official Bob Eugene’s letters of June 12, 1995 to same effect. CP at 100, 101.

7 By standard procedure Spokane will not accept payment of the fee until the City has independently calculated the fee based on the anticipated volume, see SMC 8.02.031(E), and is ready for the permit to be picked up at the counter. Here the City did not notify the applicant the permit was ready until November 1, 1995 at which time the fee was paid and the permit was picked up. CP at 534-35.

8 These are the same tunnels that were in existence for years prior to original project approval in 1992.

9 Council Member Anderson abstained from the Spokane City Council action on August 14, claiming he was abstaining only because he had been advised he would not be indemnified by the City if he did not demur to repeal of the motion. CP at 272.

10 64.40.020. Applicant for permit—Actions for damages from governmental actions. (1) Owners of a property interest who have filed an application for a permit have an action for damages to obtain relief from acts of an agency which are arbitrary, capricious, unlawful, or exceed lawful authority, or relief from a failure to act within time limits established by law: PROVIDED, That the action is unlawful or in excess of lawful authority only if the final decision of the agency was made with knowledge of its unlawfulness or that it was in excess of lawful authority, or it should reasonably have been known to have been unlawful or in excess of lawful authority.

(2) The prevailing party in an action brought pursuant to this chapter may be entitled to reasonable costs and attorney’s fees.

(3) No cause of action is created for relief from unintentional procedural or ministerial errors of an agency.

(4) Invalidation of any regulation in effect prior to the date an application for a permit is filed with the agency shall not constitute a cause of action under this chapter.

11 § 1983. Civil action for deprivation of rights

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 jurisdiction 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. 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.

12 RCW 58.17.033 (“A proposed division of land . . . shall be considered under the subdivision or short subdivision ordinance, and zoning or other land use control ordinances, in effect on the land at the time a fully completed application for preliminary plat approval . . . has been submitted . . . .”). The rights so vested include the right to develop and improve “according to the laws in effect at the time they make completed application for subdivision or short subdivision of their property.” Noble Manor Co. v. Pierce County, 133 Wn.2d 269, 280, 943 P.2d 1378 (1997).

13 Mission Springs satisfied all State Environmental Policy Act prerequisites for phase one of the development, as well all Department of Transportation requirements. CP at 75-76.

14 A subdivision is governed by the terms of approval of the final plat and those statutes, ordinances, and regulations then in effect for five years thereafter unless the legislative body finds a change in conditions creates a serious threat to the public health or safety in the subdivision. Contrary to the claim of the dissent at page 982, such a proper finding may be made at any time without regard to whether or not a grading permit has issued. The effect of such finding would be to negate that vesting required by RCW 58.17.170.

15 Property interests are not created by the constitution but are reasonable expectations of entitlement derived from independent sources such as state law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972).

16 Bateson has been relied upon in federal precedents too numerous to recite, has never been overruled, and we have relied upon Bateson on numerous prior occasions as well. See, e.g., R/L Assocs., Inc. v. City of Seattle, 113 Wn.2d 402, 412, 780 P.2d 838 (1989); Sintra, 119 Wn.2d at 20; Robinson v. City of Seattle, 119 Wn.2d 34, 61, 830 P.2d 318, cert. denied, 506 U.S. 1028, 113 S. Ct. 676, 121 L. Ed. 2d 598 (1992); Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 124, 829 P.2d 746 (1992), cert. denied, 506 U.S. 1079, 113 S. Ct. 1044, 122 L. Ed. 2d 353 (1993); Cox, 72 Wn. App. at 8.

17 The administrative nature of the action was conceded during council debate. See, e.g., infra at 955 (“The council has no administrative authority by the terms of the city charter.”). City Manager Roger Crum also attested by affidavit: “Grading permits are issued by the City’s building official, who is under my administrative authority. The City Council has no authority to direct the building official.” CP at 285. The Spokane City Charter creates an administrative branch under the direction of the city manager to process permits and otherwise administer its affairs. See Spokane City Charter, art. IY § 22(b), which expressly provides: “[N]either the city council nor any member thereof shall give orders to any subordinate of the city under the jurisdiction of the city manager . . . .”