Cary v. Mason County

• Decision Date: 18 April 2006
• Docket Number: No. 32753-8-II.,32753-8-II.
• Citation: 132 Wn. App. 495,132 P.3d 157
• Parties: James R. CARY, Mary Alice Cary, John E. Diehl, and William D. Fox, Sr., Appellants, v. MASON COUNTY and Mason Conservation District, Respondents.
• Court: Washington Court of Appeals

132 P.3d 157

132 Wn. App. 495

James R. CARY, Mary Alice Cary, John E. Diehl, and William D. Fox, Sr., Appellants, v. MASON COUNTY and Mason Conservation District, Respondents.

No. 32753-8-II.

Court of Appeals of Washington, Division 2.

April 18, 2006.

Mary Alice Cary, James R. Cary, John E. Diehl, William D. Fox, Sr., Shelton, WA, Pro Se Appellants.

Richard G. Phillips, Jr., Owens Davies PS, Olympia, WA, T.J. Martin, Mason County Prosecutor's Office, Shelton, WA, for Respondents.

ARMSTRONG, J.

¶ 1 James R. Cary appeals the trial court's dismissal of his action for declaratory judgment, arguing that a Mason County ordinance, adopted as a "special assessment," is actually an invalid and unconstitutional "property tax." The lower court ruled that the "reasonable time" for challenging the ordinance by a declaratory judgment action was 30 days and that Cary's action was therefore time-barred because he waited six months to file. We disagree, holding that Cary's action is analogous to actions to recover any tax levied or assessed under RCW 84.68.060. Such actions must be commenced by June 30 of the year following the year the tax became payable. Under that rule, Cary's complaint was timely; accordingly, we reverse and remand.

FACTS

¶ 2 On September 3, 2002, Mason County adopted ordinance 121-02, establishing a conservation special assessment under RCW 89.08.400. The text of the ordinance reads:

There shall be an assessment for natural resource conservation as authorized by RCW 89.08.400 in the amount of $5.00 per non forested land parcel with $0.00 fee per acre assessed for ten years starting 2003 and continuing through 2012.

Clerk's Papers (CP) at 49.

¶ 3 On March 10, 2003, Cary sued the County seeking a declaratory judgment that the ordinance was an invalid and unconstitutional property tax in the guise of a special assessment. He filed the action more than six months after the County had adopted the special assessment.

¶ 4 The County moved for judgment on the pleadings under CR 12(c), arguing that Cary failed to timely file his action under the "reasonable time" for appeals doctrine for challenging local and municipal improvements, which must be brought within 30 days. CP at 33. Cary responded that because he was challenging the ordinance as an unconstitutional tax, the claim should be tested against the time allowed for tax recovery actions, in which case his action was timely. Reasoning that the time limit for a declaratory judgment action is determined by analogy to the time allowed for appeal of a similar decision, and finding that the analogous period to apply afforded Cary only 30 days to appeal, the lower court held that Cary's action was untimely.

ANALYSIS

I. Standard of Review

¶ 5 This appeal arises from the County's motion for judgment on the pleadings. CR 12(c). If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the court will treat the motion as one for summary judgment and dispose of it under CR 56. CR 12(c).

¶ 6 However, the various documents the parties submitted to the trial court in support of and in opposition to the County's motion (including the ordinance itself and the agreement between Mason Conservation District and Mason County Department of Health Services¹) are not material to the determination of whether Cary timely filed his complaint. Cf. N. Coast Enter., Inc. v. Factoria P'ship, 94 Wash.App. 855, 859, 974 P.2d 1257 (1999) (holding that the information contained in a declaration, a description of negotiations between the parties prior to trial, and other matters were not material to the question of whether the statute of limitations had run for a particular contracts claim). Thus, we examine the pleadings alone "to determine whether the claimant can prove any set of facts, consistent with the complaint, that would entitle the claimant to relief." Factoria P'ship, 94 Wash.App. at 861, 974 P.2d 1257 (citing Moses Lake v. Grant County, 39 Wash.App. 256, 258, 693 P.2d 140 (1984)). In doing so, we accept as true any factual allegations in the complaint. Moses Lake, 39 Wash.App. at 258, 693 P.2d 140 (citing Berge v. Gorton, 88 Wash.2d 756, 759, 567 P.2d 187 (1977)); Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wash.2d 959, 961-62, 577 P.2d 580 (1978).

II. Taxes, Regulatory Fees, and Assessments

¶ 7 Generally speaking, "[T]axes are imposed to raise money for the public treasury." Okeson v. City of Seattle, 150 Wash.2d 540, 551, 78 P.3d 1279 (2003) (citing Dean v. Lehman, 143 Wash.2d 12, 25, 18 P.3d 523 (2001)); see also WASH. CONST. art. VII, § 1. Local governments may require payment of "fees" that are "akin to charges for services rendered." Carrillo v. City of Ocean Shores, 122 Wash.App. 592, 602, 94 P.3d 961 (2004) (citing Covell v. City of Seattle, 127 Wash.2d 874, 884, 905 P.2d 324 (1995)); WASH. CONST. art. XI, § 11 (police powers). Similarly, special assessments are "a distinctive form of user charge which allocates the cost of public improvements that increase the value of an asset (property) to the owner of that asset." HUGH D. SPITZER, TAXES V. FEES: A CURIOUS CONFUSION, 38 GONZ. L.REV. 335, 350-51 (2002/2003) (discussing Article VII, Section 9 of the Washington Constitution, and noting that the constitutional language enables local governments to "make local improvements by special assessment, or by special taxation of property benefited," which suggests assessments and special taxes are distinct (emphasis added)). SPITZER, 38 GONZ. L.REV. at 350 n. 147. As with other user fees, special assessments must "relate directly to the cost of the improvements, relate to the value of the improvements to the property assessed, and be deposited in special accounts for the particular improvements." Spitzer, 38 GONZ. L.REV. at 351 (citing Bellevue Assocs. v. City of Bellevue, 108 Wash.2d 671, 674-75, 741 P.2d 993 (1987)); see also PHILIP A. TRAUTMAN, ASSESSMENTS IN WASHINGTON, 40 WASH. L.REV. 100, 118 (1965). Mason County adopted the ordinance in this case under RCW 89.08.400 as a conservation "special assessment." CP at 56.

III. Challenges to Special Assessments Under RCW 89.08.400

¶ 8 RCW 89.08.400 prescribes no time limit for legal challenges to assessments authorized by statute. The Uniform Declaratory Judgments Act, RCW 7.24.020-.120, includes no timeliness provisions either.² Instead, Washington courts have said that "declaratory judgment actions must be brought within a `reasonable time.'" Brutsche v. City of Kent, 78 Wash.App. 370, 376, 898 P.2d 319 (1995) (quoting Federal Way v. King County, 62 Wash.App. 530, 536, 815 P.2d 790 (1991)). "`What constitutes a reasonable time is determined by analogy to the time allowed for appeal of a similar decision as prescribed by statute, rule of court, or other provision.'" Brutsche, 78 Wash.App. at 376-77, 898 P.2d 319 (quoting Federal Way, 62 Wash.App. at 536-37, 815 P.2d 790) (emphasis added). In general, when there is more than one analogous appeal period, "the longer of two . . . periods should be applied." Brutsche, 78 Wash.App. at 377, 898 P.2d 319.

¶ 9 The County argues that appeal periods for local improvements and other municipal actions typically range from 10 to 30 days. It notes that under RCW 36.94.290, county local improvement assessments must be appealed within 10 days.³ Similarly, under RCW 36.32.330, appeals from decisions of the county commissioners must be appealed within 20 days.⁴ And under RCW 35.43.100, any lawsuit of any kind challenging a municipal local improvement must be filed and served within 30 days.⁵ These examples, the County states, demonstrate that the 30-day period is the longest analogous period and the correct one to apply.

¶ 10 In contrast, Cary argues that the appeal period for actions to recover any tax levied or assessed is also analogous. Under RCW 84.68.060, actions to recover any tax levied or assessed may be commenced until "after the 30th day of the next succeeding June following the year in which said tax became payable." Cary claims that the tax in this case was not payable until 2003; thus, he had until June 30, 2004, to bring his complaint. He filed his complaint for declaratory judgment on March 10, 2003.

¶ 11 The County likens this case to Brutsche. In Brutsche, 73 days after the Kent City Council amended its zoning code, Brutsche filed a declaratory judgment complaint alleging that the amendments were facially unconstitutional, violating due process and equal protection. The trial court granted the City summary judgment, ruling that the action was time-barred. Brutsche, 78 Wash.App. at 372, 898 P.2d 319. On appeal, Brutsche contended that the trial court should have applied a three-year statute of limitations for the equal protection claims as brought under 42 U.S.C § 1983. Brutsche, 78 Wash.App. at 372, 898 P.2d 319. Division One of the Court of Appeals affirmed the lower court, concluding that Brutsche did not plead a cause of action under 42 U.S.C. § 1983 and, therefore, the three-year statute of limitations did not apply. Instead, it used the reasonable time-by-analogy analysis and held that Brutsche's declaratory judgment action, based on an allegedly invalid statute, was barred by the 30-day statute of limitations governing land use challenges. Brutsche, 78 Wash.App. at 372, 898 P.2d 319.

¶ 12 Brutsche, however, is distinguishable. Unlike the plaintiff in Brutsche, who failed to state a section 1983 claim in the complaint, Cary specifically alleged that the ordinance created a property tax, not a special assessment. In his complaint, he asserted that ordinance 121-02 "imposes a levy on property simply by virtue of ownership of property, without regard to any improvements appurtenant to the property or special benefits conferred on the property." CP at 42. As a result, he argued, the ordinance "has the earmarks of a property tax, not a special assessment." CP at 42. Further, he complained...