Schmitt v. Cape George Sewer Dist. No. One, O

• Decision Date: 23 April 1991
• Docket Number: No. 13542-6-II,No. O,O,13542-6-II
• Citation: 61 Wn.App. 1,809 P.2d 217
• Parties: Jean A. SCHMITT and William J. Schmitt, wife and husband; and Milton Foss and Lili Foss, husband and wife, Appellants, v. CAPE GEORGE SEWER DISTRICT NO. ONE; Board of Sewer Commissioners of Cape George Sewer Districtne; David Johnston and Jane Doe Johnston, husband and wife; A.J. Pickrell and Jane Doe Pickrell; husband and wife; Ralph Anderson and Jane Doe Anderson, husband and wife; and Jack Stillbert and Jane Doe Stillbert, husband and wife, Respondents.
• Court: Washington Court of Appeals

Page 1

61 Wn.App. 1

809 P.2d 217

Jean A. SCHMITT and William J. Schmitt, wife and husband and Milton Foss and Lili Foss, husband and wife, Appellants, v. CAPE GEORGE SEWER DISTRICT NO. ONE; Board of Sewer Commissioners of Cape George Sewer District No. One; David Johnston and Jane Doe Johnston, husband and wife; A.J Pickrell and Jane Doe Pickrell; husband and wife; Ralph Anderson and Jane Doe Anderson, husband and wife; and Jack Stillbert and Jane Doe Stillbert, husband and wife, Respondents.

No. 13542-6-II.

Court of Appeals of Washington Division 2.

April 23, 1991.

William H. Broughton, Hiscock & Barclay, Silverdale, for appellants.

Rod P. Kaseguma, Inslee Best Doezie & Roder, Bellevue, for respondents.

ALEXANDER, Judge.

Jean and William Schmitt and Lili and Milton Foss appeal a judgment of the Jefferson County Superior Court declaring that a Utility Local Improvement District (ULID) was validly created. They contend on appeal that the trial court erred in concluding that Commissioners of the Cape George Sewer District (1) had the power to exclude from their calculations certain land within the boundaries of a proposed Utility Local Improvement District (ULID), when determining the sufficiency of the petition to create the ULID; and (2) did not violate the Open Public Meetings Act. We reverse.

The facts are not in dispute. The Schmitts and the Fosses reside within the Cape George Sewer District in Jefferson County. In 1988, the District's Commissioners attempted to form a ULID by a resolution of the Commission. The attempt was defeated by a protest petition spearheaded by the Schmitts and the Fosses. ¹

In early 1989, a petition to form a ULID was presented to the Sewer District Commissioners by some of the residents of the District. At a non-scheduled meeting of the Commission on February 28, 1989, the Commissioners met and discussed guidelines for verifying signatures on the petition to form the ULID and the manner for determining if the petition contained the signatures of a statutorily sufficient number of landowners within the proposed ULID. See RCW 56.20.020. Three days later, at a regularly scheduled meeting of the Commission, the Commissioners passed a "Resolution of Intention" to form a ULID. The proposed ULID included land owned by the Cape George Colony Club, Inc., a nonprofit corporation. In determining that the petition contained the requisite signatures of owners of 51 percent, or more, of the land area within the proposed district, the Commissioners excluded the Club's common areas and roads from their calculations. After excluding these areas, the Commissioners concluded that the petition contained signatures of owners of 54.1 percent of the land within the proposed ULID. It is agreed that if all of Cape George Colony's land had been included in the calculations, the percentage would have been 41 percent. After several more public meetings, the Commissioners adopted a resolution creating the ULID.

The Schmitts and the Fosses appealed the Commissioners' decision to the Jefferson County Superior Court, asserting that the Commissioners' actions should be overturned because of violations of the Open Public Meetings Act and because the Commissioners erred in determining that owners of 51 percent, or more, of the land area within the proposed ULID had signed the petition. ² The superior court, after a hearing, affirmed the Commissioners' action.

We are confronted with essentially two issues: (1) was the ULID validly created? (2) Are the Schmitts and the Fosses entitled to attorney's fees based on their claim that the Open Public Meetings Act was violated?

Appellate court review of an administrative decision is made on the record of the administrative tribunal itself, not on that of the superior court. Franklin Cy. Sheriff's Office v. Sellers, 97 Wash.2d 317, 323-24, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983). Issues of law are reviewed de novo under the error of law standard. This standard allows the reviewing court to essentially substitute its judgment for that of the administrative body. However, substantial weight is given to the agency's view of the law. Franklin Cy. Sheriff's Office, 97 Wash.2d at 325, 646 P.2d 113.

The Schmitts and the Fosses argue that pursuant to RCW 56.20.020, all of the area of land within a proposed ULID must be included when the Commissioners determine whether or not the petition contained signatures of the requisite number of landowners within the proposed ULID. They contend that in making their decision, the Commissioners did not comply with RCW 56.20.020, and, therefore, the ULID was invalidly created.

RCW 56.20.020 provides, in pertinent part:

Utility local improvement districts ... may be initiated either by resolution of the board of sewer commissioners or by petition signed by the owners according to the records of the office of the county auditor of at least fifty-one percent of the area of the land within the limits of the utility local improvement district to be created. ...

(Italics ours.)

We must first ask if the Commissioners had authority under this statute to exclude certain lands within the proposed ULID from their calculations. Interpretation of a statute is a matter of law subject to independent appellate review. Washington Fed'n of State Employees v. State Personnel Bd., 54 Wash.App. 305, 773 P.2d 421 (1989). A grant of authority is derived from express statutory authorization or alternatively, by implication. Chemical Bank v. Washington Public Power Supply System, 99 Wash.2d 772, 666 P.2d 329 (1983), cert. denied, 471 U.S. 1075, 105 S.Ct. 2154, 85 L.Ed.2d 510 (1985). It is apparent to us, from a plain reading of RCW 56.20.020, that the Commissioners did not have explicit statutory authority to do what they did.

Neither can such authority be implied. The test for necessary or implied municipal power is legal necessity rather than practical necessity. Chemical Bank, 99 Wash.2d at 792, 666 P.2d 329 (citing Hillis Homes, Inc. v. Snohomish Cy., 97 Wash.2d 804, 650 P.2d 193 (1982)). To determine whether there is any implied power, the court must look at the entire statutory scheme. Chemical Bank, 99 Wash.2d at 782, 666 P.2d 329.

All of the parties agree that RCW 56.20.020 is designed to allow citizens to have a voice in the formation of ULID's for which they will be assessed. The Commissioners argue that by excluding the common areas and roads owned by the Club from their calculations, only those people who had an interest in the improvement would have a voice in whether the ULID was to be formed. They contend that the excluded land is like government owned land and therefore may be excluded under the reasoning of Mullen Benevolent Corp. v. United States, 290 U.S. 89, 54 S.Ct. 38, 78 L.Ed. 192 (1933); State v. Olympia, 171 Wash. 594, 18 P.2d 848 (1933); Spokane v. Security Sav. Soc'y., 46 Wash. 150, 89 P. 466 (1907). Our reading of these cases is that they simply do not apply to the statute with which we are here concerned. Moreover, the...