Smith v. Spokane County

• Decision Date: 18 November 1997
• Docket Number: No. 16486-1-III,16486-1-III
• Citation: 948 P.2d 1301,89 Wn.App. 340
• Parties: Sandra SMITH, an individual, Appellant, v. SPOKANE COUNTY, a Washington county; and the City of Spokane, a Washington First Class Charter city, Respondents.
• Court: Washington Court of Appeals

Page 1301

89 Wn.App. 340

948 P.2d 1301

Sandra SMITH, an individual, Appellant, v. SPOKANE COUNTY, a Washington county; and the City of

Spokane, a Washington First Class Charter city, Respondents.

No. 16486-1-III.

Court of Appeals of Washington,

Division 3.

Nov. 18, 1997.

Publication Ordered Dec. 30, 1997.

Stephen K. Eugster, Eugster, Haskell, Spokane, for Appellant.

Thomas F. Kingen, James P. McNeill, Jr., Perkins, Coie, James R. Sweetser, Prosecuting Attorney and James P. Emacio, Deputy Prosecuting Attorney, James C. Sloane, City Attorney and Stanley M. Schwartz, Assistant City Attorney, Spokane, for Respondents.

ROBERT L. ZAGELOW, Judge Pro Tem. ^*

Sandra Smith filed a class action lawsuit against Spokane County and the City of Spokane challenging the fees imposed on water and sewer customers within the Spokane-Rathdrum Aquifer Protection Area (APA). The trial court entered an order of summary judgment dismissing her claim. She appeals contending that (1) the charge is an unconstitutional tax; (2) the charge violates due process and equal protection; (3) the charge is an unlawful special assessment; (4) the charge is an unlawful taking; (5) the charge is unreasonable; (6) the charge violates the principle of tax fairness; (7) APA funds cannot finance APA projects; (8) the charge violates the 1 percent levy limitation; (9) APA funds are being used for unauthorized purposes; (10) the County has failed to actively collect APA fees; and (11) the court erred by dismissing the City as a party to this action. We affirm.

FACTS

In May 1985, the Washington State Legislature adopted RCW 36.36, which allows counties to create "aquifer protection areas for the purpose of funding the protection, preservation, and rehabilitation of subterranean water." RCW 36.36.020; Laws of 1985, ch. 425, § 2. The statute permits aquifer protection areas to impose fees in order to fund (1) the preparation of a comprehensive plan to protect, preserve, and rehabilitate subterranean water; (2) to construct facilities for removal of pollution, water quality improvement, and for the collection, disposal and treatment of sanitary sewage and storm water; (3) the proportionate reduction of special assessments imposed by a municipality for such facilities; (4) the costs of monitoring and inspecting on-site sewage disposal systems or community sewage disposal systems; and (5) the costs of monitoring the quality and quantity of subterranean water and analyzing data, implementing the comprehensive plan, enforcing compliance with standards, and public education. RCW 36.36.040. To create an aquifer protection area, a county must conduct a public hearing, adopt a resolution, and submit the issue to a vote of the electorate in the proposed protection area. RCW 36.36.020. The ballot proposition must ask the voters if the aquifer protection area shall be created and authorized to impose monthly fees on the withdrawal of water and/or on-site sewage disposal not to exceed a specific amount per household unit to finance specified activities. RCW 36.36.020.

In July 1985, the Spokane County Commissioners passed a resolution proposing the creation of the Spokane-Rathdrum Aquifer Protection Area (APA) and the imposition of fees for water withdrawal and on-site sewage disposal. The protection area includes property in the City of Spokane and the Town of Millwood, as well as unincorporated areas of the County. The proposal was approved in the September 1985 election with a 74.7 percent yes vote. Under the fee structure approved by the voters, each occupied household unit is charged $1.25 a month ($15 per year) for the withdrawal of water and $1.25 a month ($15 per year) for on-site sewage disposal, regardless of the amount of water used, or whether the household is served by a septic system or a municipal sewer line. The fees will be imposed for up to 20 years. Households served by the City of Spokane sewage system, Liberty Lake Sewer District sewage system, or the Town of Millwood sewage system are not subject to the sewage disposal fee. The fee for each non-household unit is based on the size of the water meter serving the property. Fees are imposed once a certificate of occupancy is filed on a particular piece of property. The fees are billed on a yearly basis.

Between 1986 and 1995, the County collected approximately $23.6 million in aquifer protection area fees. Seventeen percent of the revenue was used for operations and In December 1995, Sandra Smith, a resident of the City of Spokane, filed a class action suit against the City and the County challenging the fees on a number of grounds and seeking recoupment of the fees paid in the last three years, as well as attorney fees and costs. The court entered an order dismissing the City from the lawsuit. The trial court also entered an order of summary judgment dismissing the case. Ms. Smith now appeals.

administration. Two percent was distributed to the Spokane County Health District for water quality monitoring. Eighty-one percent of the fees were spent on sewer construction in order to minimize sewage pollution. $15.9 million was spent for sewer construction within the County, $3.6 million was spent for sewer construction in the City of Spokane, and $585,000 was spent for sewer construction in the Town of Millwood.

DISCUSSION

When reviewing an order of summary judgment the appellate court engages in the same inquiry as the trial court. Degel v. Majestic Mobile Manor, Inc., 129 Wash.2d 43, 48, 914 P.2d 728 (1996). Summary judgment is appropriate only when no questions of material fact exist. CR 56(c); Degel, 129 Wash.2d at 48, 914 P.2d 728. The court must consider all of the facts and reasonable inferences in the light most favorable to the nonmoving party. Id. Summary judgment in this case is appropriate only if this court determines, after viewing all of the evidence in the light most favorable to Ms. Smith, that no material questions of fact exist.

Ms. Smith argues that summary judgment was inappropriate in part by attacking the constitutionality of the statute and enactments which permitted the County to create the APA. The interpretation of a statute or municipal enactment is a question of law for the court. Ball v. Smith, 87 Wash.2d 717, 722, 556 P.2d 936 (1976). A statute is presumed to be constitutional and the party attacking the statute bears the burden of establishing its unconstitutionality beyond a reasonable doubt. Leonard v. City of Spokane, 127 Wash.2d 194, 197-98, 897 P.2d 358 (1995). Municipal ordinances are afforded the same presumption of constitutionality. Brown v. City of Yakima, 116 Wash.2d 556, 559, 807 P.2d 353 (1991). Whenever possible an enactment must be interpreted in a manner which upholds its constitutionality. City of Tacoma v. Luvene, 118 Wash.2d 826, 841, 827 P.2d 1374 (1992).

Ms. Smith argues that the APA charges imposed by the County are not fees, but rather an unlawful property tax. Washington's Constitution requires that all taxes be imposed at the same rate based upon the value of the property. Const. art. VII, § 1. Since the APA fee is the same for all property owners regardless of property value, if it were deemed a tax it would be unconstitutional. See Covell v. City of Seattle, 127 Wash.2d 874, 878, 905 P.2d 324 (1995). If the APA charge is a regulatory fee, then it would be permissible under the County government's general police powers. Const. art. XI, § 11; Covell, 127 Wash.2d at 878, 905 P.2d 324; Margola Assocs. v. City of Seattle, 121 Wash.2d 625, 634, 854 P.2d 23 (1993). Thus, the primary issue in this case is whether the APA fees charged by the County are regulatory fees or taxes.

Whether a charge imposed by a governmental entity is a tax or regulatory fee depends on three factors. Covell, 127 Wash.2d at 879, 905 P.2d 324. The first factor to consider is whether the primary purpose of the County is to accomplish desired public health benefits which cost money, or if the purpose is to regulate. Id. If the primary purpose is to raise revenue rather than to regulate then the charge is a tax; but if the purpose is regulatory then the charge is deemed a fee. Id. The second factor to consider is whether the money collected is allocated only for authorized regulatory purposes. Id. The third factor is whether there is a direct relationship between the fee charged and (1) the service received by those who pay the fee, or (2) the burden produced by the fee payer. Id.

The County imposed this fee under the authority of RCW 36.36. The stated purpose of that chapter is:

The protection of subterranean water from pollution or degradation is of great concern. The depletion of subterranean water is of great concern. The purpose of this chapter is to allow the creation of aquifer protection areas to finance the protection, preservation, and rehabilitation of subterranean water, and to reduce special assessments imposed upon households to finance facilities for such purposes. Pollution and degradation of subterranean drinking water supplies, and the depletion of subterranean drinking water supplies, pose immediate threats to the safety and welfare of the citizens of this state.

RCW 36.36.010. APA areas may impose fees to fund (1) the preparation of comprehensive plans to protect, preserve, and rehabilitate the water source; (2) the construction of facilities to remove water pollution, improve water quality, increase sanitary sewage collection, disposal and treatment, and increase storm water or surface water drainage collection, disposal and treatment; and (3) the costs of monitoring and inspecting on-site sewage disposal systems for compliance with rules. RCW 36.36.040.

Ms. Smith argues that the primary purpose of RCW 36.36 is to finance the construction of facilities within the APA. She relies heavily on the legislative history to this statute to support her argument. When a statute is ambiguous courts may look to the legislative history. Washington...