Is an agreement made among a group of Central Tacoma residents 74 years ago to keep their neighborhood residential still enforceable?
That question is central to a fight between currents residents and a developer who wants to build a four-story storage facility in the neighborhood.
Earlier this month, Superior Court Judge Grant Blinn signaled that the agreement, known formally as a covenant, can be enforced.
Ruling in a lawsuit, Blinn sided with the Murray March Neighborhood Association, other residents and a church that oppose construction of a CubeSmart storage business in their neighborhood, according to attorney Doug Schafer, who represents the association.
In a pre-trial motion, the association asked the judge to uphold the covenant, and Blinn ruled June 7 that sections of the document meant to protect the neighborhood were still enforceable, Schafer said. The judge also dismissed several claims made by the attorneys for the developer and property owner.
Blinn is expected to file a formal, written findings in the coming weeks.
The Murray March Neighborhood Association considers Blinn’s oral decision a “critical win,” according to a post in its Facebook group, but further legal action is likely.
Multiple attempts by The News Tribune to contact the developers’ attorney were unsuccessful.
The storage facility
The storage facility is proposed on an empty lot along South Lawrence Street, between South 18th and 19th streets. It would be next to the Gloria Dei Lutheran Church and built on ground previously occupied by six single-family homes.
The developer, Pacific Northwest Developments, LLC, wants to buy the property from its current owner, Rainier Partners, LLC, and construct the 120,560-square-foot facility.
Many neighbors and Gloria Dei officials don’t want the facility in their neighborhood.
In an op-ed published in The News Tribune this April, Kris Blondin argued residents of the area hadn’t been notified about the proposed development early enough nor been given time to appeal the plans approved by the city planning department.
“They did not want a 4 story storage warehouse right across the street from their neighborhood,” Schafer said.
City spokesperson Stacy Ellifritt told The News Tribune via email Thursday that when the project underwent environmental review in 2017, residents would have been notified through “a newspaper notice and transmittal to the neighborhood council.”
Ellifritt, citing planning department officials, added “there is no notification for ministerial (projects),” which are site development and building permits.
The planning department also stressed that the “building permit for the storage unit has not been approved,” only the site development permit, which allows paving, landscaping, and driveways, Ellifritt said.
“The development was approved,” she added, “ because, as proposed, it meets all applicable regulations per zoning and site development codes … The City does not enforce private covenants.”
In late 2018, Pacific Northwest Developments sued several members of the neighborhood and the Gloria Dei church, according to Tyler Shillito, an attorney representing several of the area’s homeowners. The lawsuit further enraged some residents.
The lawsuit centers on a covenant, basically a code for the area, written in 1945. Part of the goal was to keep the area residential.
The developer and property owner want the lot for the proposed storage facility to be released from the covenant, so that they can build. The church, many residents and property owners want to uphold it, so the construction won’t happen.
To combat the lawsuit and try to stop the proposed storage facility, residents created a gofundme to pay for the court costs and a petition to stop the lawsuit.
The attorneys for the developer and property owner have argued, among other things, that the 1945 covenant is no longer enforceable.
One of their arguments is that the covenant includes sections they say have been violated over the past 74 years. As such, they say, the covenant essentially has been abandoned and can’t be enforced.
One section is a paragraph that calls for the exclusion from the neighborhood of people “of any race other than the White or Caucasian race.” In 1948, the Supreme Court ruled that these types of racially restrictive covenants could not be legally enforced.
Racist language such as this still pervades many of the old covenants still on the books in Tacoma, The News Tribune reported in January. It’s a reminder of the history of redlining in the city.
Another argument used by the developer is that the neighborhood has changed so substantially since 1945 that the covenants are no longer enforceable.
The attorneys representing neighbors disagree.
Citing a Washington Supreme Court case, Schafer said each paragraph in a covenant stands alone and is therefore considered separately.
While some paragraphs are no longer valid, others remain enforceable, including the paragraphs restricting the area for residential use, the neighbors’ attorneys have argued.
The covenant includes sections which state, among other things, that “all lots in the tract shall be known and described as residential lots” and “no noxious or offensive trade or activity shall be carried out upon any lot.”
On May 3, City Council member Keith Blocker, who represents the district, released a statement regarding the proposed storage facility.
“The City of Tacoma cannot take action in this case, which is private litigation,” Blocker said. “I have asked that staff conduct a thorough review of loopholes and weaknesses in our code and explore options to mitigate the impact on the neighborhood.”
Blocker also stated, “This project (the storage facility) is not consistent with the vision of the Council or the neighborhood.”