PRATT v. WATER DIST. NO. 79, 58 Wn.2d 420 (1961)

363 P.2d 816

FOSTER M. PRATT et al., Appellants, v. WATER DISTRICT NO. 79 et al., Respondents.[*]

No. 35590.The Supreme Court of Washington. Department One.
July 13, 1961.

[1] TAXATION — LEVY AND ASSESSMENT — STATUTORY REQUIREMENTS — NOTICE — COMPLIANCE — NECESSITY. Generally, failure to comply with statutory requirements renders an assessment invalid as against unnotified owners, however, if the purpose of statutory notice is achieved otherwise, noncompliance is without prejudice. [2] SAME — CONSTITUTIONAL REQUIREMENTS — DUE PROCESS — NOTICE — RELIANCE ON TAX ROLLS. The notice provisions of the local improvement district statutes (RCW 57.16.060 and 57.16.070), are sufficient to satisfy the due process requirement that notice of proceedings must be mailed to record owners before an assessment can be levied against their property, where the statute provides that notice be sent to the person shown as owner on the tax rolls of the county treasurer, since if such rolls are properly kept, the record owner’s name will appear on the tax rolls, and a taxing body is entitled to rely on the tax rolls being accurate. [3] SAME — LEVY AND ASSESSMENT — CONCLUSIVENESS — LACK OF NOTICE — EFFECT. RCW 57.16.100, which provides that a water district’s actions in levying assessments for local improvements are conclusive after final acceptance of the assessment roll, does not preclude such assessment being challenged for lack of proper notice, since without statutory notice, subsequent proceedings are invalid. [4] EQUITY — LACHES — WHAT CONSTITUTES. Laches is not a mere matter of time, but a lapse of an unreasonable amount of time during which the adversary has prejudicially changed his position, relying upon the failure to assert the claimed right. [3] See Ann. 84 A.L.R. 1099; Am. Jur., Special or Local Assessments, § 156.

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Appeal from a judgment of the Superior Court for King County, No. 544371, Donald L. Gaines, J., entered March 24, 1960, dismissing an action to remove a local improvement district assessment. Reversed and remanded.

Hulbert S. Murray and Philip H. De Turk, for appellants.

Lycette, Diamond Sylvester and Meade Emory, for respondents.

FOSTER, J.

Appellants Pratt and McIntosh sued to remove utility local improvement district assessments upon their property. Upon the defendant water district’s motion for summary judgment, the trial court dismissed with prejudice, from which judgment plaintiffs appeal.

Appellants, by recorded conveyance, acquired the property November 15, 1956. Appellants discussed with the respondent water district the formation of a ULID for service to their property, but when the district declined, appellants then installed their own works. According to custom, the water district’s engineer inspected the completed project and billed the appellants therefor. In April, 1958, appellants quitclaimed the entire facility to the water district. In June, 1958, the water district adopted a resolution for the formation of ULID No. 13, which included appellants’ property.

The establishment of a local improvement district and the levy of special assessments therefor are entirely statutory. The resolution of the water district to form a ULID must provide for public hearing and publish notice thereof. Such notice must also be sent to the

“. . . owner or reputed owner of any lot, tract, parcel of land or other property within the proposed improvement district by mailing said notice at least fifteen days before the date fixed for the public hearing to the owner or reputed owner of the property as shown on the tax rolls of the county treasurer at the address shown thereon. . . .” RCW 57.16.060.

After the public hearing, the water district may order the improvement and file an assessment roll with the county treasurer. Before the assessments are approved, however,

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the water district must give notice and hear any protests of the property owners. In addition to the notice by publication, notice of such assessment must also be given by

“. . . mailing, at least fifteen days before the hearing, a similar notice to the owners or reputed owners of the land in the local district as they appear on the books of the treasurer of the county in which the water district is located. . . .” RCW 57.16.070.

This action concerns the legal implications of a failure to give the statutory notice. While at all times material appellants Pratt and McIntosh were the record owners of the property, nevertheless, on the tax rolls Andrew Krafczyk, a stranger to this action, was listed as the owner. But neither notice of the hearing on the formation resolution nor notice of the hearing on the proposed assessments was sent to either. Notice of the hearing on the proposed assessments, but not the hearing on the formation resolution, was sent to the Western Development Company, Incorporated, a one time mortgagee of the property.

[1] Generally, failure to comply with the statutory requirements renders assessments invalid as against unnotified owners. Rhyne, Municipal Law, 723, § 29-6; 14 McQuillin, Municipal Corporations, 237, 242, § 38.98. The procedure for establishing a ULID — petition, formal water district action, and public hearings — contemplates substantial public, as opposed to representative, participation. To secure owner participation, notice is a prerequisite.

If the purpose of statutory notice is achieved otherwise, noncompliance is without prejudice. Cf. In re Local Improvement Districts Nos. 1-58, 2-58, 57 Wn.2d 499, 358 P.2d 314.

Respondent water district argues that actual notice cures any defect resulting from a failure to comply with the statute.[1]
Respondents point out that negotiations continued

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between the parties almost to the time of the formation resolution and claims, and that the appellants knew from the beginning of the water district’s plans. This appellants deny.

This is an appeal from a summary judgment of dismissal which may be granted only if there is “no genuine issue as to any material fact.” Rule of Pleading, Practice and Procedure 56(c), RCW Vol. 0. It is disputed whether appellants had actual notice of the assessment hearing. The possible conflicting inferences resulting can be resolved only by proof. The summary judgment of dismissal was, therefore, improvident.

Respondent water district argues that the sending of the statutory notice would have been an idle formality. The appellants’ names did not appear on the tax rolls, but Andrew Krafczyk’s did, and there was no showing that he would or would not have forwarded any notice to the appellants.

Upon this issue, respondents must overcome the argument that due process requires mailed notice to recorded owners before an assessment can be levied against appellants’ property. Walker v. City of Hutchinson, 352 U.S. 112, 1 L.Ed. 2d 178, 77 S.Ct. 200,[2] decided that notice by publication is not due process. The court said:

“. . . In the present case there seem to be no compelling or even persuasive reasons why such direct notice cannot be given. Appellant’s name was known to the city and was on the official records. Even a letter would have apprised him that his property was about to be taken and that he must appear if he wanted to be heard as to its value.”

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[2] If, as respondent water district argues, a notice sent to the owner as shown by the tax rolls would not have reached the appellants, then perhaps the notice provisions of the local improvement district statutes are not constitutionally sufficient. But this is not so. The record owners’ names will appear on the tax rolls if such are accurately kept.[3] Walker v. City of Hutchinson, supra, requires no more.

“. . . The right to a hearing is meaningless without notice. I Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, we gave thorough consideration to the problem of adequate notice under the Due Process Clause. That case establishes the rule that, if feasible, notice must be reasonably calculated to inform parties of proceedings which may directly and adversely affect their legally protected interests. We there called attention to the impossibility of setting up a rigid formula as to the kind of notice that must be given; notice required will vary with circumstances and conditions. We recognized that in some cases it might not be reasonably possible to give personal notice, for example where people are missing or unknown.”

The statute is constitutional under the Walker test. The statutory requirement of notice by mail was added in 1953 to satisfy the test in Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 94 L.Ed. 865, 70 S.Ct. 652. If the county assessor had properly listed the owners on the tax rolls, the failure of the water district to comply with the statute would have been crucial, but he did not. The water district need not question the work of the assessor, but is entitled to rely upon the tax rolls.

Appellants, although not responsible for the error, are not completely innocent. Their conveyance was recorded in 1956. Yet, two years later (February, 1958), Andrew

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Krafczyk was billed for the taxes and presumably paid them. Had appellants examined the tax rolls, we must presume the error would have been corrected and that the statutory notices would have been sent them. This neglect for almost two years made the appellants the less innocent of two innocent parties.

[3, 4] Respondent water district makes two other arguments. Both are without merit. First, respondent water district argues that RCW 57.16.100 precludes appellants’ challenge of the assessments because it makes the district’s actions conclusive after final acceptance of the assessment roll. But proper notice is a prerequisite. Without statutory notice, subsequent proceedings are invalid.[4] This section does not erect a great wall behind which water districts can make secret decisions impervious to attack. Second, respondent water district argues that appellants are precluded by laches. Laches is not mere delay, but delay which worked to the adversary’s disadvantage Waldrip v. Olympia Oyster Co., 40 Wn.2d 469, 244 P.2d 273. Respondents fail to show prejudice by delay. Moreover, when an assessment is challenged for failure to give proper notice, the water district bears some responsibility for the delay. Laches is of equitable origin. Laches is not, however, like a statute of limitations a mere matter of time, but there must be lapse of an unreasonable amount of time during which the adversary has prejudicially changed his position, relying upon the failure to assert the claimed right. State ex rel. Hearty v. Mullin, 198 Wn. 99, 105, 87 P.2d 280; Anderson Estate v. Hoffman, 171 Wn. 378, 384, 18 P.2d 5; 2 Pomeroy, Equity Jurisprudence (5th ed.), 177, § 419 (d).[5]

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The judgment is reversed and the cause remanded for trial upon a single issue of fact: Did appellants have actual notice of the public hearings in sufficient time to make the statutory protest? Respondents will prevail if they prove appellants had such actual notice. Otherwise, the assessments upon appellants’ property are invalid and unenforcible.

FINLEY, C.J., HILL, WEAVER and ROSELLINI, JJ., concur.