Harberd v. City of Kettle Falls, 21787-6-III.
| Decision Date | 15 January 2004 |
| Docket Number | No. 21787-6-III.,21787-6-III. |
| Citation | 120 Wn. App. 498,120 Wash. App. 498,84 P.3d 1241 |
| Parties | James W. and Fumiko T. HARBERD, husband and wife, Appellants, v. CITY OF KETTLE FALLS, a Municipal Corporation, Respondent. |
| Court | Washington Court of Appeals |
Chris A. Montgomery, Montgomery Law Firm, Colville, WA, for Appellant(s).
Stephen M. Lamberson, Kevin W. Mickey, Etter, McMahon, Lamberson & Clary PC, Spokane, WA, for Respondent.
James and Fumiko Harberd (collectively Mr. Harberd) filed a damages claim against the City of Kettle Falls (City) contending the City reneged on an agreement to let Mr. Harberd hook up his proposed out-of-town housing lots to the City's water system. The trial court granted the City's motion for summary judgment. Mr. Harberd does not renew his injunctive relief arguments here, thus they are abandoned. State v. Noah, 103 Wash.App. 29, 41 n. 3, 9 P.3d 858 (2000), review denied, 143 Wash.2d 1014, 22 P.3d 802 (2001). After analyzing remaining issues regarding claim filing, statute of limitations, contract, and estoppel, we affirm.
On August 25, 2000, a process server attempting to serve Mr. Harberd's statutory claim for damages against the City asked Leanne Sanders, Secretary/Clerk for the City's Mayor, if he could see the Mayor, or the City Clerk/Treasurer, Raena Skaggs. Upon learning neither was present, the process server served Ms. Sanders.
On March 16, 2001, Mr. Harberd filed a complaint for damages and injunctive relief against the City in the Stevens County Superior Court. The complaint alleged the City breached "an express or implied contract to furnish water hook-ups for future developments" of Mr. Harberd's concerned real property. Clerk's Papers (CP) at 4. The summons and complaint were served on the City's Mayor on March 20, 2001.
On July 11, 2002, the City moved for summary judgment dismissal. The City partly argued Mr. Harberd had failed to properly serve his claim for damages because Ms. Sanders was not empowered to accept service of process on behalf of the City pursuant to RCW 35.23.121. The City also contended Mr. Harberd's claim was time barred because he presented no evidence of an oral contract occurring within the three-year statute of limitations pursuant to RCW 4.16.080(3).
The summary judgment record showed in September 1981 that the City imposed a moratorium on out-of-town water hookups until the City upgraded its water system. In April 1983, after the moratorium had ended, Mr. Harberd discussed with the City Council whether he could obtain City water hookups for five acres he hoped to develop, out of 103 acres total (Tract I). Mr. Harberd proposed to install a 6-inch water line at his own expense with seven connections running from it. The Council instructed concerned staff to work with Mr. Harberd on arriving at an agreement on such water hookups. In January 1983, the City Council approved two water hookups for Tract I. The standard fee for each out of town 3/4-inch water hookup was $1,000.
On January 15, 1985, the City Council approved Mr. Harberd's request for two more water hookups, one for Tract I and another for a separate 20-acre parcel. On February 5, Mr. Harberd approached the City Council again with a proposal for further development of Tract I. He told the Council Tract I had potential for 35 lots and he already had seven approved hookups. He also told the Council he intended to develop another 50 acres with 38 proposed hookups, including four already approved (Tract II). Specifically, Mr. Harberd asked the City for four more hookups for Tract II.
The Council told Mr. Harberd he needed to bring the matter before the Kettle Falls Planning Commission (Planning Commission). Council member Don Pratt told Mr. Harberd a grant of four additional hookups "does not guarantee him any additional hookups in the future." CP at 40. "Mr. Harberd stated he understood that and that he was just requesting to be treated fairly and equitably for his water hookups." CP at 40.
On February 12, 1985, Mr. Harberd outlined his development proposal to the Planning Commission. The Planning Commission recommended Mr. Harberd long plat 15 lots for houses rather than mobile homes.
In June 1988, Mr. Harberd sought City Council approval of water hookups for a proposed long plat made up of 30 to 35 lots. Although two Council members expressed concerns about water pressure with that many hookups, the Council approved Mr. Harberd's request. Mr. Harberd requested City Council approval of four more hookups in April 1989. One City staff member expressed concern that "the City had over committed on the water hookups and at some point in the near future would have to stop approving them." CP at 44. Nevertheless, the staff member did not oppose Mr. Harberd's request. The City Council approved the new hookups.
With each hookup approval, Mr. Harberd and the City executed a written water service contract pertaining to the served property, which partly provided:
The second party [Mr. Harberd] further hereby releases the City of Kettle Falls, and holds the city harmless for any liability arising out of any theory of law be it tort, contract, strict liability, warranty, products liability, restitution, or otherwise resulting from the town providing water to the second party or in repairing or maintaining said water line.
At the May 21, 1991 City Council meeting, Mr. Harberd complained he could not get sufficient water pressure for some lots. He requested permission to connect the lots to a nearby City water line. On June 4, 1991, the City Council approved a 2-inch hookup for Mr. Harberd's lots and assessed a standard fee of $2,600.
In March 1993, the Washington State Department of Health (DOH) informed the City that a recent study "estimated the maximum number of service connections that could be adequately served by your existing system to be 1,400," and that DOH would issue the City an operating permit approved for that number of hookups. CP at 62. As of May 18, 1993, the City had approximately 800 active hookups and had approved another 550 proposed hookups. On June 1, 1993, the City passed a resolution imposing a 90-day moratorium for approval of new hookups. The resolution also instructed the concerned officials and administrators "to reduce the number of approved but not connected water services outside the city limits." CP at 65. The City Council later extended the moratorium one more month until September 24, 1993.
On July 20, 1993, the City imposed a requirement that property owners with previously approved, but as yet unconnected, ¾-inch water hookups to pay the $1,000 fee for each hookup within six months, or else the City would nullify the approved hookups. The City notified Mr. Harberd of this new requirement for his 39 approved hookups by letter dated July 22, 1993. At the August 3, 1993 City Council meeting, Mr. Harberd asked that the fee be waived for him because he paid to install his own 6-inch water line. At the August 17, 1993 meeting, the City Council rejected Mr. Harberd's request to extend a six-month deadline for payment of the hookup fees. The City Council gave property owners with reserved water hookups until August 31, 1993 to advise the City of their commitment to pay the $1,000 fee.
In April 1994, the City Council approved the Planning Commission's recommendation that the City deny Mr. Harberd's request for eight more hookups.
On August 16, 1994, the City Council passed an ordinance imposing a moratorium on all out of town water hookups except "those water hookups guaranteed by payment, a signed contract and/or recorded with the county." CP at 68. The length of the moratorium was to "be until such time that necessary action can be taken to update the city water system and construction to accomplish the update construction has begun, and no further request will be honored or considered." CP at 68.
In October 1995, the City denied Clay Young's request for two out of town water hookups on the basis of the moratorium. "Clay's request will be added to the list and he will be notified when the moratorium is lifted." CP at 894.
At the April 15, 1997 meeting, the City Council voted "to discontinue taking applications for out of town water hookups." CP at 52. With regard to already approved hookups, the Council meeting minutes state:
It was recommended we satisfy our current paid out of town water hookups and what is currently on the list that is in our Urban Growth Area. It was recommended the city refund the $10.00 for applications already received for hookups outside the Urban Growth Area. City Attorney Charlie Schuerman will look at this and give a recommendation on what can be done.
In May 1997, the Kettle Falls Area Planning Committee (Planning Committee) recommended the City approve dividing one existing 1-inch hookup into two 3/4-inch hookups for a parcel owned by Harold Monette. And the Planning Committee approved an increase from four hookups to five for a parcel owned by Bob Jones.
In November 1997, the City adopted a comprehensive growth management plan (1997 Comprehensive Plan). Pursuant to the Growth Management Act of 1990, chapter 36.70A RCW, the 1997 Comprehensive Plan included a set of goals and policies for capital facilities and utilities. Regarding water systems, "Policy 1.3" states:
City services will not be extended outside of the city limits unless these areas are first annexed to the City. In the case of the water system, new hookups within the existing service area but outside of the Urban Growth Area will be subject to the following policies:
a) Existing commitments for water will be honored under the terms of the existing contracts.
b) The City will establish a reserve of water capacity for the use of undeveloped property within the City and within the Urban Growth Area. New water service outside of the City or Urban Growth Area but...
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