Carrillo v. City of Ocean Shores, No. 29735-3-II.
| Court | Court of Appeals of Washington |
| Writing for the Court | QUINN-BRINTNALL, C.J. |
| Citation | 94 P.3d 961,122 Wash. App. 592,122 Wn. App. 592 |
| Parties | Samuel CARRILLO; Lily A. Banks; Neil Beasley; Mark A. Berge and Barbara Berge, husband and wife; Richard Bethards; Sandra A. Shaw; and that class of persons and entities similarly situated, Respondents, v. CITY OF OCEAN SHORES, a Washington municipal corporation, Appellant. |
| Decision Date | 13 July 2004 |
| Docket Number | No. 29735-3-II. |
94 P.3d 961
122 Wn. App. 592
122 Wash. App. 592
v.
CITY OF OCEAN SHORES, a Washington municipal corporation, Appellant
No. 29735-3-II.
Court of Appeals of Washington, Division 2.
July 13, 2004.
William Colwell Severson, Attorney at Law, Seattle, WA, for Petitioners.
QUINN-BRINTNALL, C.J.
The City of Ocean Shores required owners of vacant lots within the City limits (owners) to pay water and sewer "availability charges," although their properties were not connected to the City's water and sewer systems. The owners of these vacant lots sued the City, claiming the charges were unconstitutional property taxes and not permissible regulatory fees. The trial court granted the owners summary judgment.
The City appeals, claiming that the charges are permissible and authorized by statute; that the trial court erred by rejecting the City's affirmative defenses of laches, waiver, and estoppel; that even if correct, the trial court decision terminating the fee should apply prospectively only; and that sovereign immunity bars interest on any judgment. The City also appeals the trial court's dismissal of its unjust enrichment counterclaim against the owners. We affirm and hold that the owners are entitled to recover the "availability charges" paid after April 8, 1996,1 plus interest.
FACTS
The City is a non-charter code city2 that owns and operates a combined system of sewer, water, and storm and surface water utilities ("Combined Utility"). The City has a water supply and distribution system ("water system"). The City also has a sanitary sewage collection and treatment system ("sewer system") that includes a wastewater treatment plant.
Ocean Shores Municipal Code (OSMC) Section 13.12.070, first enacted in 1980 as Ordinance 300, imposes a per lot charge for
Availability charge — Water rates for lots not connected to the water system.
A. A monthly water service charge ... is fixed and established for each lot within the corporate limits of the city which is not connected to the water system.
Clerk's Papers (CP) at 77. Currently, all lots in the City have access to a City water main or service line.
Similarly, OSMC 13.26.040, first enacted in 1993 as Ordinance 553, imposes a sewer availability charge on lots not connected to the sewer system:
Availability charge — Sewer rates for unconnected lots with access to the system.
A. A monthly sewer service charge ... per lot is fixed and established for each lot within the corporate limits of the city which is not connected to the sewer system but has ... service available to it.
CP at 231. Currently, nearly all properties in the City have available sewer service.3
The availability charges apply to undeveloped lots as well as those lots developed with septic systems.4 For customers connected to the municipal water and sewer systems, the City collects regular periodic water charges based on meter size and water consumption and sewer charges based on volume or, for residences, a flat rate.
In the City, only about 30 percent of the approximately 12,000 lots are developed. A number of the undeveloped lots in the City are used for camping in recreational vehicles (RVs). Many of these vehicles have on-board bathroom facilities similar to those on small yachts.
The City regulates this RV camping by issuing approximately 2,400 free camping permits per year. The City does not charge a fee for the camping permits, but camping on a site is permitted for only 90 days per year. The City prohibits camping in tents on these lots because, unlike RVs, tents do not have a method of sewage disposal. Sewage generated on undeveloped lots through RV camping is treated at the City's wastewater treatment plant. The City maintains a RV Dump Facility, constructed in 1994, as part of the Combined Utility, where RV users may dump their sewage. The sewage is transported to the City's wastewater treatment plant for disposal. The facility also provides free potable water. The City does not charge a fee for using the facility, and many users have indicated they would not use the facility if there were a charge. In recent years, water pollution and contamination from failing septic systems and illegal sewage dumping have created problems for the City, which are exacerbated by the City's natural geologic conditions, including sandy soil and a high water table.
The availability charges collected5 are deposited into the Water Utility Enterprise Fund and the Sewer Utility Enterprise Fund.
The City uses the availability charges it collects to fund the expansion of the sewer system's wastewater treatment plant. The availability charges also funded the water system's expansion to provide fire protection throughout the City.6
On April 8, 1999, the owners filed a class action against the City, seeking to represent a class of all property owners subject to the City's sewer and water availability charges. The parties stipulated to the classification and, on July 7, 1999, the trial court certified the class under CR 23(b)(1) and (2). The
The owners filed a motion for summary judgment on February 5, 2001, but the trial court stayed proceedings pending the Supreme Court decision in Samis Land Co. v. City of Soap Lake, 143 Wash.2d 798, 23 P.3d 477 (2001), a case dealing with the legality of standby water and sewer charges imposed by that city.
The issues before us are presented in a series of letter rulings issued by the trial court throughout 2002.
On January 14, 2002, based on the holding in Samis the trial court ruled for the owners' class on the issue of liability, finding the availability charges unconstitutional.
On May 10, 2002, the trial court rejected the City's affirmative defenses and denied the City's motion to apply the decision prospectively only.
On October 8, 2002, the trial court also rejected the City's argument that sovereign immunity barred the imposition of pre- and post-judgment interest on refunds of availability charges.
On October 28, 2002, the court granted the owners' motion for summary judgment. The summary judgment order found the availability charge to be invalid and rejected the City's defenses, as well as its prospectivity and sovereign immunity arguments.
On July 29, 2002, the trial court entered an order dismissing the City's amended counterclaims, filed May 24, 2002, including its unjust enrichment claim.
The court also denied the City's untimely motion for leave to amend its answer, and it entered CR 54(b) findings on the unjust enrichment counterclaim on November 21, 2002. In a separate order, it entered CR 54(b) findings on the issues covered in the October 28 summary judgment order (liability, defenses, prospectivity, sovereign immunity).
ISSUES PRESENTED
We first address an initial issue: Are the availability charges constitutionally invalid taxes? Finding that they are, we address the following five issues: (1) Was the trial court's summary judgment rejecting the City's defenses of laches, estoppel, and waiver improper? (2) Should the owners' class be limited to prospective relief only? (3) Does the doctrine of sovereign immunity bar the City's payment of pre- and post-judgment interest? (4) Should the trial court have granted the City leave to amend its answer as a matter of right, to add an unjust enrichment counterclaim; or did "justice require" the trial court to have granted the City leave to amend its answer to add the counterclaim? (5) Should the owners be awarded attorney fees on appeal because the City's appeal is frivolous? We answer the first question in the affirmative as stated and the rest of the questions in the negative and affirm the trial court.
ANALYSIS
When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). Like the trial court, we must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wash.2d at 437, 656 P.2d 1030. The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or on having its affidavits considered at face value. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wash.2d 1, 13, 721 P.2d 1 (1986). A motion for summary judgment is proper only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wash.2d at 437, 656 P.2d 1030.
CONSTITUTIONALITY OF AVAILABILITY CHARGES
The City first contends that the trial court erred in determining as a matter of law under Samis that the water and sewer availability
STANDARD OF REVIEW
Municipal ordinances, like state statutes, are presumed constitutional, except where they implicate a suspect class or fundamental right. Weden v. San Juan County, 135 Wash.2d 678, 690, 958 P.2d 273 (1998). See High Tide Seafoods v. State, 106 Wash.2d 695, 698, 725 P.2d 411 (1986), dismissed by 479 U.S. 1073, 107 S.Ct. 1265, 94 L.Ed.2d 126 (1987). If a state of facts...
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City of Bainbridge Island v. Brennan, No. 31816-4-II (WA 7/20/2005), No. 31816-4-II
...will not apply the doctrine of laches to bar an action short of the applicable statute of limitations. Carrillo v. City of Ocean Shores, 122 Wn. App. 592, 610, 94 P.3d 961 (2004). We review a trial court's decision on whether to apply laches for abuse of discretion. In re Marriage of Watkin......
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Sifferman v. Chelan Cnty., 54514-4-II
...Texas Co. v. Cohn , 8 Wash.2d 360, 112 P.2d 522 (1941) (challenging imposition of fuel oil taxes); Carrillo v. City of Ocean Shores , 122 Wash. App. 592, 94 P.3d 961 (2004) (challenging imposition of water and sewer charge as an unconstitutional property tax).¶ 48 The taxpayers also rely on......
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Protect the Peninsula's Future v. City of Port A., No. 43252–8–II.
...might differ and it is so totally devoid of merit that no reasonable possibility of reversal exists. Carrillo v. City of Ocean Shores, 122 Wash.App. 592, 619, 94 P.3d 961 (2004) (citing Streater v. White, 26 Wash.App. 430, 434–35, 613 P.2d 187 (1980)). ¶ 52 Even if binding precedent had dir......
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Sifferman v. Chelan Cnty., 54514-4-II
...Texas Co. v. Cohn, 8 Wn.2d 360, 112 P.2d 522 (1941) (challenging imposition of fuel oil taxes); Carrillo v. City of Ocean Shores, 122 Wn.App. 592, 94 P.3d 961 (2004) (challenging imposition of water and sewer charge as an unconstitutional property tax). The taxpayers also rely on Covell v. ......
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City of Bainbridge Island v. Brennan, No. 31816-4-II (WA 7/20/2005), No. 31816-4-II
...will not apply the doctrine of laches to bar an action short of the applicable statute of limitations. Carrillo v. City of Ocean Shores, 122 Wn. App. 592, 610, 94 P.3d 961 (2004). We review a trial court's decision on whether to apply laches for abuse of discretion. In re Marriage of Watkin......
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Sifferman v. Chelan Cnty., 54514-4-II
...Texas Co. v. Cohn , 8 Wash.2d 360, 112 P.2d 522 (1941) (challenging imposition of fuel oil taxes); Carrillo v. City of Ocean Shores , 122 Wash. App. 592, 94 P.3d 961 (2004) (challenging imposition of water and sewer charge as an unconstitutional property tax).¶ 48 The taxpayers also rely on......
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Protect the Peninsula's Future v. City of Port A., No. 43252–8–II.
...might differ and it is so totally devoid of merit that no reasonable possibility of reversal exists. Carrillo v. City of Ocean Shores, 122 Wash.App. 592, 619, 94 P.3d 961 (2004) (citing Streater v. White, 26 Wash.App. 430, 434–35, 613 P.2d 187 (1980)). ¶ 52 Even if binding precedent had dir......
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Sifferman v. Chelan Cnty., 54514-4-II
...Texas Co. v. Cohn, 8 Wn.2d 360, 112 P.2d 522 (1941) (challenging imposition of fuel oil taxes); Carrillo v. City of Ocean Shores, 122 Wn.App. 592, 94 P.3d 961 (2004) (challenging imposition of water and sewer charge as an unconstitutional property tax). The taxpayers also rely on Covell v. ......