City of Lakewood v. Pierce County

• Decision Date: 04 May 2001
• Docket Number: No. 25010-1-II.,25010-1-II.
• Citation: 23 P.3d 1,106 Wash.App. 63
• Court: Washington Court of Appeals
• Parties: CITY OF LAKEWOOD, a municipal corporation of the State of Washington, Appellant, v. PIERCE COUNTY, a political subdivision of the State of Washington, Respondent.

23 P.3d 1

106 Wash.App. 63

CITY OF LAKEWOOD, a municipal corporation of the State of Washington, Appellant, v. PIERCE COUNTY, a political subdivision of the State of Washington, Respondent.

No. 25010-1-II.

Court of Appeals of Washington, Division 2.

May 4, 2001.

Daniel Brian Heid, Lakewood, for Appellant.

Ramona L. Monroe, Patrick John Schneider, Stoel Rives Llp, Seattle, for Respondent.

Paul Marshall Parker, Seattle, Amicus Curiae on behalf of Washington State Ass'n of Counties.

Wayne Douglas Tanaka, Ogden Murphy Wallace, Amicus Curiae on behalf of Washington State Ass'n of Municipal Attorneys.

ALEXANDER, J.P.T.¹

The Thurston County Superior Court granted summary judgment to Pierce County, holding that the City of Lakewood may not require the County to enter into a franchise agreement to operate sewer lines and facilities under Lakewood's streets and that Lakewood may not charge the County a fee for such franchise in excess of Lakewood's administrative costs. We affirm.

FACTS

Pierce County operates a regional sanitary sewer system under the authority of chapter 36.94 RCW. Before the City of Lakewood incorporated in 1996, the County installed sewer lines under the public streets and rights-of-way that are now within Lakewood. The sewer lines serve residences and buildings within Lakewood as well as residences and buildings outside of Lakewood. Upon incorporation, Lakewood assumed control of the public streets and rights-of-way within the area of incorporation pursuant to RCW 35.02.180.

In 1997, Lakewood and the County began negotiating for a franchise for the continued use of Lakewood rights-of-way by the County sewer system, pursuant to RCW 35A.47.040. The parties could not agree on franchise terms, and negotiations ended in late 1997 or early 1998.

In May 1998, Lakewood brought suit in Thurston County Superior Court against the County.² Lakewood's complaint focused on the potential conflict between RCW 35A.47.040, which authorizes cities to grant franchises for sewer operations under city streets, and RCW 36.94.140, which authorizes counties to operate sewer systems. RCW 35A.47.040 provides:

Every code city shall have authority to permit and regulate ... and to grant nonexclusive franchises for the use of public streets, bridges or other public ways, structures or places above or below the surface of the ground for ... sewer and other private and publicly owned and operated facilities for public service.

RCW 36.94.140 provides:

Every county, in the operation of a system of sewerage ... shall have full jurisdiction and authority to manage, regulate, and control it and to fix, alter, regulate, and control the rates and charges for the service and facilities to those to whom such service and facilities are available, and to levy charges for connection to the system.

In its Complaint, Lakewood asked the court for a declaratory judgment that:

• "[Lakewood] has the authority to regulate and control the [County's] use of [Lakewood's] city streets and rights of way, including the authority of [Lakewood] to permit and regulate the structures, facilities, property and lines of the [County's] sewerage system located within the city streets and rights of way of [Lakewood], and that [Lakewood] has been granted the authority to franchise the use of such city streets and rights of way;" and

• "[Lakewood] has the authority to negotiate a franchise fee reflective of its full costs and the full impacts to its streets and rights of way in connection with" the County's sewerage system.

Clerk's Papers at 10-11.³

The County counterclaimed and asked the trial court to enter a declaratory judgment that:

• Lakewood is without authority to require a franchise from the County to operate the County's sewerage system within Lakewood rights-of-way; and

• Lakewood is without authority to impose a franchise fee for the presence or operation of the County's sewerage system.

The County moved for summary judgment and both parties conceded that there were no genuine issues of material fact. The trial court granted the County's motion and entered an order in which it denied Lakewood the relief it requested in its complaint, and granted the relief requested in the first two causes of action of the County's counterclaim.

In its Memorandum Opinion, the trial court held that RCW 35A.47.040 and RCW 36.94.140 are inconsistent with each other and that RCW 36.94.140 controls over RCW 35A.47.040. The trial court concluded that because of the inconsistency, "RCW 35A.47.040 must be construed (`modified') to remove county sewers from the authority to permit and regulate and to grant franchises provided to the city in the statute." Clerk's Papers at 232.

The trial court also held that Lakewood may not require the County to obtain a franchise for its regional sewer lines passing beneath Lakewood's streets and that it may not charge the County a fee for such a franchise in excess of Lakewood's administrative costs.

The trial court denied Lakewood's motion for reconsideration. Lakewood then filed a timely notice of appeal with this court.

DISCUSSION

When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Bishop v. Miche, 137 Wash.2d 518, 523, 973 P.2d 465 (1999). 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). A material fact is one that affects the outcome of the litigation. Ruff v. County of King, 125 Wash.2d 697, 703, 887 P.2d 886 (1995). All facts and reasonable inferences are reviewed in the light most favorable to the nonmoving party, and all questions of law are reviewed de novo. Bishop, 137 Wash.2d at 523, 973 P.2d 465.

Both parties still agree, and the record confirms, that the material facts in this case are undisputed. The only issues before us, as was the case at the trial court, are questions of law: whether Lakewood may require the County to obtain a franchise for its regional sewer lines passing beneath Lakewood streets, and whether Lakewood may charge the County a fee for this right in excess of Lakewood's administrative costs.

I. Lakewood's authority to require the County to enter into a franchise agreement for the operation of sewer lines and facilities under Lakewood's streets

Both parties agree that, at a minimum, Lakewood may negotiate a franchise agreement with the County for the operation of sewer lines under Lakewood's streets, and that Lakewood may grant a franchise to the County if the parties reach an agreement. This position is consistent with the plain language of RCW 35A.47.040, as are the parties' actions in trying to negotiate such a franchise before filing this lawsuit. The parties' positions diverge, however, on the issue raised by the County's Motion for Summary Judgment: whether Lakewood may require a franchise from the County for the use of Lakewood's streets for County sewers.

The trial court concluded that Lakewood may not require the County to obtain a franchise to use Lakewood's streets for the operation of a sewerage system. The trial court based its conclusion, in part, on its determination that County sewers are not included in the authority granted to Lakewood by RCW 35A.47.040.⁴

We may use any valid ground to affirm the trial court's conclusion, even if our reasoning differs from that of the trial court. See State v. Williams, 93 Wash.App. 340, 347-48, 968 P.2d 26 (1998), review denied, 138 Wash.2d 1002, 984 P.2d 1034 (1999) (citing Nast v. Michels, 107 Wash.2d 300, 308, 730 P.2d 54 (1986)). We hold that the trial court erred in determining that County sewers are not included in the authority granted to Lakewood by RCW 35A.47.040, but we affirm it on other grounds.

The trial court construed RCW 36.94.140 and RCW 35A.47.040 and concluded that the former controls over the latter. The construction of statutes is, of course, a question of law that we review de novo under the error of law standard. Waste Management of Seattle, Inc. v. Utilities and Transp. Comm'n, 123 Wash.2d 621, 627, 869 P.2d 1034 (1994).

When interpreting statutes, we first look to the plain meaning of words used in the statutes. State v. Fjermestad, 114 Wash.2d 828, 835, 791 P.2d 897 (1990). We may give a nontechnical statutory term its dictionary meaning. Fjermestad, 114 Wash.2d at 835, 791 P.2d 897.

If the statutory language is clear and unambiguous, we assume the legislature meant exactly what it said and determine the meaning of the statutes from their language alone. See Duke v. Boyd, 133 Wash.2d 80, 87, 942 P.2d 351 (1997); C.J.C. v. Corporation of the Catholic Bishop of Yakima, 138 Wash.2d 699, 708, 985 P.2d 262 (1999). On the other hand, if the statutory language is ambiguous, we resort to the tools of statutory construction to ascertain and give effect to the legislature's intent and purpose. Harmon v. Dep't of Soc. & Health Servs., 134 Wash.2d 523, 530, 951 P.2d 770 (1998).

A statute is ambiguous when it is fairly susceptible to two or more reasonable interpretations. Sacred Heart Medical Center v. Dept. of Revenue, 88 Wash.App. 632, 636, 946 P.2d 409 (1997) (citing Schelinski v. Midwest Mut. Ins. Co., 71 Wash.App. 783, 787, 863 P.2d 564 (1993)). In its Memorandum Opinion, the trial court indicated that the "juxtaposition" of RCW 35A.47.040 and RCW 36.94.140 created "uncertainty," "inconsistency," and "ambiguity." Clerk's Papers at 230-32. Although the trial court concluded that each statute was clear on its own, the opinion also refers to the statutes as "ambiguous." Clerk's Papers at 231. Significantly, neither party has argued to us that either of the statutes in question is ambiguous. We agree with them that neither RCW 35A.47.040 nor RCW 36.94.140 is ambiguous.

The more pertinent question is whether the statutes conflict. Where two statutes are in apparent...