Grant County Fire Protection District No. 5 v. City of Moses Lake

Decision Date14 March 2002
Docket Number No. 70090-7, No. 70499-6.
Citation42 P.3d 394,145 Wash.2d 702
CourtWashington Supreme Court
PartiesGRANT COUNTY FIRE PROTECTION DISTRICT NO. 5, a municipal corporation; Wyatt D. Hanks and Annette Hanks, husband and wife, Appellants, v. CITY OF MOSES LAKE, a municipal corporation, Respondent. Busby International, Inc., a Washington corporation; D & L Foundry and Supply, Inc., a Washington corporation; Hanson Processing LLC, a Washington limited liability company; EKA Chemicals, Inc., a Delaware corporation; Pacific Northwest Sugar, L.P., a Washington limited partnership; Inland Terminals, Inc., a Washington corporation, Agri Beef Co., an Idaho corporation, Defendants. Yakima County Fire Protection District No. 12, a municipal corporation; Lyle E. Gapen and Max Seal, Appellants, v. City of Yakima, a municipal corporation, Respondent.

Snure Law Offices, Clark Snure, Brian Snure, Des Moines, Christine Gregoire, Attorney General, Narda Pierce, Solicitor General, Olympia, for Appellants.

Elizabeth Thomas, Seattle, Raymond Paolella, Lawrence Peterson, Yakima, Peter Di-Julio, Seattle, Roger D. Wynne, Asst. Seattle City Attorney, Seattle, Michael Wyman, James Whitaker, Ephrata, for Respondents.

Greg A. Rubstello, Joseph Z. Lell, Seattle, Daniel B. Heid, Auburn City Attorney, Auburn, Amicus Curiae on Behalf of Washington Association of Municipal Attorneys.

Christine Gregoire, Attorney General, William Collins, Asst., Olympia, Amicus Curiae on Behalf of Attorney General.

BRIDGE, J.

In these consolidated cases, affected property owners and fire districts seek review of summary judgment orders denying their challenge to the constitutionality of the "property-owner-petition" method (petition method) of annexation. We hold that the petition method of annexation gives an impermissible privilege to owners of highly valued land, and therefore violates article I, section 12 of the Washington State Constitution.

FACTS

In each case, the city used the petition method to annex property. The primary distinction between the cases is the statute involved. Moses Lake is a "code city" that chose to be incorporated under chapter 35A RCW, whereas Yakima is a "non-code city" operating under chapter 35.13 RCW.

The City of Moses Lake Annexation

The Wheeler Corridor area is adjacent to the city of Moses Lake and at all relevant times was within the city's urban growth area (UGA) or interim UGA. Between 1990 and 1998, seven corporate property owners signed Extraterritorial Utility Extension Agreements (EUEAs). These agreements entitled them to receive water and sewer services from Moses Lake in exchange for granting power of attorney to the city manager to sign any future annexation petition on their behalf. The corporations waived the right to object to any future annexation. Pursuant to the agreements, Grant County Fire District No. 5 (GCFD5) provided residents of the area with fire protection and emergency medical services.

Since Moses Lake is a code city, the procedure for the petition method of annexation is governed by chapter 35A.14 RCW and requires two steps. Prior to circulating a petition, the owners of at least 10 percent of the assessed value of the property in the proposed area for annexation must sign a notice of intent to petition. If the city council accepts the notice, owners of at least 60 percent of the assessed value must sign a petition before the annexation may proceed.

On May 11, 1999, the city manager, acting as attorney in fact for at least 10 percent of the Wheeler Corridor property owners, filed a notice of intent to petition the city council for annexation pursuant to chapter 35A. 14 RCW. On May 25, the city council accepted the notice. On June 8, the city council directed the city manager, as attorney in fact for 60 percent of the Wheeler Corridor property owners, to sign an annexation petition. In essence, Moses Lake petitioned itself to annex the property.

On August 10, 1999, the city council held a public hearing at which property owner Paul Carpenter presented a petition opposing annexation on behalf of the owners of 80 parcels, with a value of approximately $20,000,000. Gus Smith, who owned seven other parcels, also stated his opposition. Nevertheless, the city council approved the petition. Thereafter, on September 28, the city council sua sponte authorized the city manager to amend the petition and revise the legal boundaries.

Following another public hearing on October 26, 1999 the city council approved the amended petition. On November 9, 1999, Moses Lake adopted the annexation ordinance. On April 21, 2000, Moses Lake published the ordinance, and five days later it began to provide law enforcement and fire protection services to the Wheeler Corridor area. From that point, GCFD5 no longer provided services to the area.

On September 27, 1999, Wyatt and Annette Hanks, property owners and registered voters in the Wheeler Corridor area, together with GCFD5, filed an application for writ of review and complaint for declaratory judgment contesting the validity of the annexation proceedings and challenging the constitutionality of the petition method of annexation. The trial court granted summary judgment in favor of Moses Lake, ruling that none of the plaintiffs had standing to challenge the validity of or to restrain the use of the utility agreements, and finding the petition method of annexation to be constitutional. Plaintiffs filed a motion for reconsideration, which was denied. Plaintiffs timely appealed to Division Three of the Court of Appeals, which transferred the appeal to this court.

City of Yakima Annexation

The facts in the Yakima annexation closely parallel those in Grant County. In 1981, Yakima County (County), the city of Yakima (Yakima), and the town of Union Gap adopted the Yakima Urban Area Comprehensive Plan (YUAP), stating that "[residents and land owners within the Yakima Urban Area are best served by the City of Yakima or the town of Union Gap rather than the County and shall be encouraged to annex."1 Several property owners in the Nob Hill/S. 40th Avenue area signed Outside Utility Agreements (OUAs) allowing them to receive garbage and refuse service in exchange for consent to future annexation of the property just as though the owner had signed an annexation petition.

The procedure for the petition method of annexation for this non-code city is governed by chapter 35.13 RCW, which parallels the procedure for code cities, but with some differences. The initial notice of intent to petition may be signed either by the owners of at least 10 percent of the assessed value of the proposed annexation area or by at least 10 percent of the property owners. The property owners must also file a notice of intent to annex with the Washington State Boundary Review Board (BRB), which then reviews and approves, disapproves, or modifies the proposed annexation. If the city council accepts the notice of intent to annex, owners of at least 75 percent of the assessed value must sign a petition conforming to the requirements of the BRB before annexation may proceed.

On June 15, 1999, Yakima initiated annexation proceedings based on the OUAs signed by the owners of 198 of the 269 properties in the described area. Yakima's expressed reasons for annexation included consistency with the goals of the YUAP and the Growth Management Act, chapter 36.70A RCW. On March 9, 2000, the BRB held a public hearing to review the proposed annexation. Yakima County Fire District No. 12 (YCFD12) and property owner Lyle E. Gapen spoke in opposition.

On April 12, 2000, the BRB met to review the proposed annexation and found that the annexation would remove 2.2 percent of the tax base of the fire district and approximately 1.8 percent of its area. At the request of the County, the board modified the proposed annexation to include an additional area, to avoid having an "island" of unincorporated territory within Yakima. In a written statement, YCFD12 opposed the addition of the island on the grounds that the expanded area to be annexed did not contain OUAs covering 75 percent of the assessed value. State Representative John Koster for the 39th District requested an opinion from the attorney general. The opinion upheld the procedure. On August 15, 2000, Yakima adopted ordinance 2000-32, annexing the area as modified by the BRB, with an effective date of September 18, 2000.

On August 22, 2000, YCFD12 and property owners Lyle E. Gapen and Max Seal filed suit seeking a declaration that RCW 35.13.125-.160 is unconstitutional, voiding the annexation, and enjoining Yakima's future use of OUAs as a basis for annexation petition signatures. YCFD12 claimed a loss of tax revenues, tax basis, and associated debt capacity pursuant to RCW 52.08.021.2 Gapen and Seal own property within the annexation area, but neither of them owns property subject to OUAs. They claimed that the petition method denied them their right to vote.

On September 19, 2000, Yakima adopted ordinance 2000-44, which repealed ordinance 2000-32 and changed the effective date of the annexation to December 6, 2000, to allow time for the litigation. On November 7, 2000, the trial court granted summary judgment in favor of Yakima. In contrast to the holding in Grant County, the court held that all plaintiffs have standing, but, as in Grant County, held that the petition method of annexation was constitutional. The plaintiffs filed a timely notice of appeal.

ANALYSIS

The threshold question in each case is whether these plaintiffs have standing. The trial court in Grant County held that none of the plaintiffs had standing; the Yakima County court held that all plaintiffs had standing.

Standing to seek a declaratory judgment is addressed by statute, the Uniform Declaratory Judgments Act (UDJA), chapter 7.24 RCW:

A person ... whose rights, status or other legal relations are affected by a statute, municipal...

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