FROM THE DESK OF CHRISTOPHER KING, J.D.

ARLINGTON COMPLIANCE
kingcast955@icloud.com
617.543.8085 m

Re: Notice of Claim -- Capital Improvement Fees at XXXXXXXXX

7 September 2021

Dear Ms. Newport, Ms. Lamoureux and City Attorney Walker:

I. Relevant Background.

I have decades of experience in commercial and residential zoning and property acquisition as zoning
project manager and closing attorney among other things.

Today I am dismayed about what I see with respect to the property owned by my client Adam Clark at
XXXXXXXXXXXXX. Specifically I have reviewed the City’s response to my RCW §42.56 inquiry as to the
ADU fees and costs over the past ten (10) years.

In reviewing the responses I already know that his ADU was basically opening up an existing space in a
part of the house that used to be a fourth bedroom. Walling was changed and an entrance was built.
There was no new construction. There was no need for new water or sewer connections to City lines.
Yet and still he paid $4,490 for each. As noted by the attached Excel spreadsheet (Appendix A) culled
from your own responses to me in the 55-page ADU Permit copies response he was the only
homeowner compelled to pay both of these.

Meanwhile you have twenty-three (23) others who did not – even though several of these were actually
new builds that required water and sewer. And even the others that were similar to his that were not
new builds didn’t pay both of these assessments.

II. Legal Review.

We cannot see any rhyme nor reason for this, and I am prepared to say that it appears to be arbitrary
and capricious and completely devoid of logic; it is similar in principle to spot zoning, which is of course
presumptively questionable. From AGLO 1973 No. 103 - Nov 7 1973:
https://www.atg.wa.gov/ago-opinions/counties-cities-and-towns-spot-zoning

"No law shall be passed granting to any citizen, class of citizens, or corporation other than
municipal, privileges or immunities which upon the same terms shall not equally belong to all
citizens, or corporations."5/1

1
5/As observed by the Washington court in Texas Company v. Cohn, 8 Wn.2d 360, 112 P.2d 522 (1941), this
state constitutional provision and the federal Constitution's equal protection clause are to be taken as having
essentially the same meaning.

1
 FROM THE DESK OF CHRISTOPHER KING, J.D.
ARLINGTON COMPLIANCE
kingcast955@icloud.com
617.543.8085 m

Moreover, Arbitrary and Capricious malfeasance provides a sustainable Cause of Action under 42 USC
§1983. See Robinson v. Seattle, 119 Wn.2d 34 (1992) 830 P.2d 318; Hayes v. City of Seattle, 131 Wn.2d
706, 712-713, 934 P.2d 1179 (1997).
Let us share relevant passages from both of those cases and yet another case from the Eighth

Circuit:

First, Robinson:

[17] A municipality may be subject to suit under section 1983 of the federal civil rights
statutes when that municipality acts through an ordinance. R/L Assocs., Inc. v.
Seattle, 113 Wash. 2d 402, 780 P.2d 838 (1989). In addition, a municipality may be liable on a
section 1983 civil rights claim when a city employee violates a federally protected right while
executing a policy or ordinance officially adopted and implemented by city officials.  Learned
v. Bellevue, 860 F.2d 928 (9th Cir.1988), cert. denied, 489 U.S. 1079 (1989). The plaintiffs in
this case sued the City of Seattle, which may be recognized as a "person" under section 1983,
as well as bringing action against several city employees in both their official and individual
capacities. The Robinsons *59 alleged a violation of their federal constitutional rights was
committed by the City and its employees acting pursuant to an ordinance (the HPO); and a
municipality may be subject to section 1983 liability when it acts through an ordinance.  R/L
Assocs., at 411-12.
We reject the City's contention that this court in R/L Assocs. held as a matter of law that
Seattle's enforcement of the HPO could not give rise to a civil rights claim. As the Robinsons
point out, this court simply did not consider that issue on appeal:
While R/L pleaded a section 1983 claim, it made no allegation of irrational, or arbitrary or
capricious conduct on the part of the City in its denial of R/L's demolition license. Moreover,
this issue was not presented to or considered by the trial court and will not be considered on
appeal.

Next, Hayes:

Hayes moved for summary judgment relying on RCW 64.40, as well as 42 U.S.C. §§ 1983 and
1988. The Superior Court, relying strictly on RCW 64.40, granted his motion and awarded him
damages against Seattle in the amount of $18,609.33, together with $1,302.65 for
prejudgment interest and a reasonable attorney fee of $24,048.82. The latter amount
included $5,621.50 in expert witness fees.
The Court of Appeals, Division One, affirmed the trial court, despite holding that Hayes's
claim for damages under RCW 64.40 was barred by the statute of limitations. It concluded,
however, that Hayes was entitled to damages pursuant to 42 U.S.C. § 1983 and attorney fees
under 42 U.S.C. § 1988. It also affirmed the award of reasonable attorney fees, but held that
Hayes was not entitled to recover any amount for fees he had paid to expert witnesses.

2
 FROM THE DESK OF CHRISTOPHER KING, J.D.
ARLINGTON COMPLIANCE
kingcast955@icloud.com
617.543.8085 m

The Court of Appeals did not disturb such finding, and furthermore the Dissent in the case
spelled it out yet further:
1. Arbitrary and Capricious Conduct
In Lutheran Day Care, we held the county's denial of a conditional use permit was a violation
of substantive due process. We said "[s]uch a violation is made out ... only if the decision to
deny the permit is `invidious or irrational' or `arbitrary or capricious'."  *1195 Lutheran Day
Care v. Snohomish County, 119 Wash.2d 91, 125, 829 P.2d 746 (1992) (citing R/L Assocs., Inc.
v. City of Seattle, 113 Wash.2d 402, 412, 780 P.2d 838 (1989)), cert.
denied, 506 U.S. 1079, 113 S. Ct. 1044, 122 L. Ed. 2d 353 (1993). R/L Assocs. does not say
that, however. R/L Assocs. says "a land use decision `denies substantive due process only if it
is invidious or irrational.'" (Emphasis added.) R/L Assocs., 113 Wash.2d at
412, 780 P.2d 838 (quoting Harding v. County of Door, 870 F.2d 430, 431 (7th Cir.)), cert.
denied, 493 U.S. 853, 110 S. Ct. 154, 107 L. Ed. 2d 112 (1989). In Sintra v. City of Seattle, 119
Wash.2d 1, 23, 829 P.2d 765 (1992), published the same day as Lutheran Day Care, we said,
"Arbitrary, irrational action on the part of regulators is sufficient to sustain a substantive due
process claim under § 1983," citing Coniston Corp. v. Village of Hoffman
Estates, 844 F.2d 461, 467 (7th Cir.1988), but also said there must be either animus or a
"`deliberate flouting of the law that trammels significant personal or property rights,'"
quoting Silverman v. Barry, 845 F.2d 1072, 1080 (D.C.Cir.), cert denied, 488 U.S. 956, 109 S.
Ct. 394, 102 L. Ed. 2d 383 (1988). In both R/L Assocs. and Sintra, we declared something more
than mere arbitrary and capricious behavior is necessary to sustain a substantive due process
claim.
In Lutheran Day Care, however, we said a violation of substantive due process can
occur either from invidious or irrational action, or from arbitrary or capricious action. We
held because the trial court had already found the county's actions in the writ proceeding
arbitrary and capricious, the appellant "has established as a matter of law and fact that the
County violated substantive due process when it denied the conditional use
permit." Lutheran Day Care, 119 Wash.2d at 125, 829 P.2d 746.

3
 FROM THE DESK OF CHRISTOPHER KING, J.D.
ARLINGTON COMPLIANCE
kingcast955@icloud.com
617.543.8085 m

Lastly, we present Tri County Landfill v. Brule County, SD (200 SD 148):

TRI-COUNTY LANDFILL V. BRULE COUNTY, SD

[¶10.]  1.       Whether Landfill established a violation of constitutional rights entitling it to summary

judgment on liability under 42 USC § 1983.
 
[¶11.]  Under a 42 USC § 1983 cause of action, a party may recover damages for the
“‘deprivation of any rights, privileges, or immunities secured by the Constitution and laws’ of the
United States caused by any person acting ‘under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory.’”  See  Michigan Envtl. Resources Assocs., Inc. v.
County of Macomb, 669 FSupp 158, 159 (EDMich 1987) (quotation omitted).  In a § 1983 action,
plaintiff must prove two elements.  Id.  First, a plaintiff must prove “that the defendant acted
under color of state law.”  Id.  Second, the plaintiff must prove that “the defendant deprived the
plaintiff of a federal right, either statutory or constitutional.”  Id. (citing Gomez v. Toledo, 446 US
635, 100 SCt 1920, 64 LEd2d 572 (1980)).  The parties do not dispute that County’s conduct was
under “color of state law”; therefore, the first element of a § 1983 cause of action is clearly
satisfied.  As such, the crux of our review focuses on whether Landfill was deprived of any
“statutory or constitutional right.”
[¶12.]  Landfill originally alleged in its complaint in this case that “revocation by [County] was
without prior notice to the [Landfill] and was arbitrary, capricious, willful, malicious, and an
unconstitutional taking without just compensation, due process and denied the [Landfill] equal
protection under both the South Dakota and United States Constitutions and is actionable under
[42] USC 1983 and 1985.”  The trial court granted summary judgment solely on the grounds that
County violated Landfill’s due process rights.[4]……..     

….. [¶14.] The second type of due process is substantive due process which provides that
“‘certain types of governmental acts [violate] the Due Process Clause regardless of the
procedures used to implement them.’”  Id. at 159-60 (quoting Nishiyama v. Dickson County
Tennessee, 814 F2d 277, 281 (6thCir 1987)).  It is well settled that the doctrine of substantive
due process,

“does not  protect individuals from all [governmental] actions that infringe
liberty or injure property in violation of some law.  Rather, substantive due
process prevents ‘governmental power from being used for purposes of
oppression,’ or ‘abuse of government power that shocks the conscience,’ or
‘action that is legally irrational in that it is not sufficiently keyed to any
legitimate state interests.’”
 

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 FROM THE DESK OF CHRISTOPHER KING, J.D.
ARLINGTON COMPLIANCE
kingcast955@icloud.com
617.543.8085 m

PFZ Properties, Inc. v. Rodriguez, 928 F2d 28, 31-32 (1stCir 1991) (quoting Committee of U.S.
Citizens in Nicaragua v. Reagan, 859 F2d 929, 943 (DCCir 1988) (citations omitted)) (emphasis
added)……
……[¶19.] The Eighth Circuit has repeatedly applied the “truly irrational” standard to
determining substantive due process violations.  See, e.g.,  Graning v. Sherburne County, 172 F3d
611, 617 (8thCir 1999) (holding that to determine whether former state employee’s substantive
due process rights were violated as a result of her termination by County, she must show that
the government action was “truly irrational”); Bituminous Materials, Inc. v. Rice County,
Minnesota, 126 F3d 1068, 1070 (8thCir 1997) (noting that for a road paving contractor to
establish that County’s placement of restrictions on the issuance of a use permit was a violation
of BMI’s substantive due process rights, they must establish that County’s actions were “truly
irrational”); Anderson v. Douglas County, 4 F3d 574, 577 (8thCir 1993) (stating that where
landowner brought suit against County for violation of his substantive due process rights,
landowner must establish that the County’s actions were “truly irrational”).  County also draws
our attention to two prior South Dakota district court decisions which have also utilized the
“truly irrational” standard.  See  Thompson v. Ellenbacker, 935 FSupp 1037, 1040 (DSD 1995)
(holding that where a child support obligor brought an action for violation of his due process
rights based upon a South Dakota statute restricting the issuance and renewal of his driver’s
license for failure to pay child support, obligor must establish that government action was “truly
irrational”) and Achtien v. City of Deadwood, 814 FSupp 808, 815 (DSD 1993) (concluding that in
a § 1983 action by developers against City for denial of building permits, developer “must show
that the city acted in a truly irrational, truly egregious manner”).  
[¶20.] The finding of liability by the trial court solely on Tri County I’s  “arbitrary and capricious”
finding was wrong.  As in Chesterfield, a “bad-faith violation of state law remains only a violation
of state law” and should “‘not automatically give rise to a violation of rights secured by the
Constitution.’”  See Chesterfield, 963 F2d at 1104, 1105 (quotation omitted) (emphasis
added).  To allow this liability determination to stand would elevate “every violation of state law
. . . into a federal constitutional tort.”  See id. at 1104 (citing Lemke, 846 F2d at 472).  Therefore,
this matter has to be remanded back to the trial court for a factual determination of whether
“truly irrational” conduct existed to support a claim under § 1983.

5
 FROM THE DESK OF CHRISTOPHER KING, J.D.
ARLINGTON COMPLIANCE
kingcast955@icloud.com
617.543.8085 m

III. Demand.

So then, whether it be “arbitrary and capricious” or “a shock of the conscience” or “completely

irrational” Mr. Clark has demonstrated that he was not treated fairly nor equally under the law by State

Actors. As such, there are but two (2) options here to avoid the litigation that he seeks to commence:

First, the City charges everyone going back 10 years both the water and sewer Capital

Improvement Fee as Mr. Clark paid, or;

Second, the City refunds both sewer and water assessments (and costs of this review and

market rate interest) as neither one of them should have applied to him, ab initio.

We look forward to hearing the City’s position no later than Close of Business one week from today, on

Wednesday 15 September, 2021.

Respectfully submitted,

____________________________
Christopher King, J.D.
Arlington Compliance
617.543.8085