South Hill Sewer Dist. v. Pierce County

• Decision Date: 27 February 1979
• Docket Number: No. 3327-II,3327-II
• Citation: 22 Wn.App. 738,591 P.2d 877
• Parties: SOUTH HILL SEWER DISTRICT, a municipal corporation, and the City of Bonney Lake, a municipal corporation, Respondents, v. PIERCE COUNTY, Washington, a municipal corporation, the Board of County Commissioners of Pierce County, Washington, and the Individual County Commissioners, Patrick J. Gallagher, Joe Stortini and Clay Huntington, Appellants.
• Court: Washington Court of Appeals

Page 738

22 Wn.App. 738

591 P.2d 877

SOUTH HILL SEWER DISTRICT, a municipal corporation, and the City of Bonney Lake, a municipal corporation, Respondents, v. PIERCE COUNTY, Washington, a municipal corporation, the Board of County Commissioners of Pierce County, Washington and the Individual County Commissioners, Patrick J Gallagher, Joe Stortini and Clay Huntington, Appellants.

No. 3327-II.

Court of Appeals of Washington, Division 2.

Feb. 27, 1979.

Donald Herron, Prosecuting Atty., Keith M. Black, Deputy Prosecuting Atty., Tacoma, for appellants.

Thomas L. Fishbourne, Tacoma, George Kelley, Skoog & Mullin, Tacoma, for respondents.

SOULE, Judge.

Pierce County appeals from a summary judgment declaring that the City of Bonney Lake and the South Hill Sewer District may locate their sewage treatment plant in unincorporated Pierce County without regard to the limitations of the Pierce County zoning regulations and that therefore, the plaintiffs need not obtain an unclassified use permit or a substantial development permit which is normally required under local regulations adopted by virtue of the Shoreline Management Act, RCW 90.58.010 Et seq.

The principal issue is whether Pierce County can use its zoning regulations to prohibit another governmental entity from placing its sewage treatment facility in the county at a site initially selected by joint action between Pierce County and that governmental entity, the site being in a general use classification area. We hold that zoning regulations cannot be so used.

The matter came before the trial court on stipulated facts. In essence, it was agreed that since early 1970, Pierce County has been concerned with water-quality management in the Puyallup River Basin. As a result, the Board of County Commissioners by appropriate resolution, as set forth in the stipulation, accepted federal assistance in developing a basin plan. Prior to July 1, 1975, plans were completed at a cost of $198,000 and the plan was adopted on July 1, 1975. It was later amended on June 21, 1976 by amending the Pierce County Comprehensive Plan.

Meanwhile, on February 18, 1975, by resolution No. 17799, Pierce County approved and executed an "Interlocal Agreement" between Bonney Lake, South Hill Sewer District and Pierce County. The purpose was to provide for the preparation of plans for a specific subarea of the larger basin plan. By the agreement, Pierce County designated Bonney Lake as the lead agency to administer the project and acquire real property. Pierce County also pledged its full cooperation and good faith in implementing the plan. Pursuant to the agreement, engineers were employed to prepare a facility plan which was submitted in June of 1976 and modified in September of 1976. That plan had several alternative site suggestions for the treatment facility.

On February 15, 1977, by resolution No. 19445, the Board of County Commissioners approved the plan and specifically accepted site No. 2 (the one here at issue,) reserving however, the right to recommend alternative site No. 6 in the event Bonney Lake "fails to be successful in implementing alternative II." On the same day the Board executed a further "Interlocal Agreement" continuing the authority of Bonney Lake as the lead agency and again agreeing to cooperate.

Following the execution of this agreement, an engineering firm commenced actual design work which was largely completed by July 26, 1977. On April 12, 1977, the county made an additional commitment of $125,000 toward the design costs which included facilities at alternative site No. 2, and in May of 1977, Bonney Lake applied to Pierce County for an unclassified use permit. In connection with site No. 2, the State Department of Ecology and the United States Environmental Protection Agency gave their approvals.

On June 2, 1977, the Pierce County Planning staff made a favorable recommendation to the Planning Commission and also indicated that the request was in conformity with all applicable plans and regulations. Nevertheless, on June 9, after a public hearing, the verbatim record of which we do not have, the Planning Commission voted to deny the unclassified use permit. Bonney Lake appealed to the Board of County Commissioners and on June 26, 1977, they upheld the Planning Commission and refused to grant the unclassified use permit. In support of the Board's action, it found that to permit the sewage treatment facility in a general use zone was

NOT reasonably necessary and requisite in the interest of the public health, safety, morals and the general welfare and that said Unclassified Use Permit will NOT permit the advantageous and economic development of the community and the county without unduly injuring adjacent and surrounding property, . . .

The minutes of the meeting of June 26 reflect that the County Commissioner in whose district site No. 2 is located identified the issue as "Are we going to allow the treatment plant to be built where it is proposed, or are we going to tell them to take another alternate."

By its action, the County Commissioners repudiated their action of February 15, 1977, wherein they agreed to, and approved, site No. 2 and thereby affirmatively prevented Bonney Lake from implementing its plans to build on that location. Bluntly put, they reneged, and although we do not base our decision on this action, it is clear that in so doing, they jeopardized seven years of planning, study and design, during which, large sums of taxpayers' money had been spent under the supervision of Bonney Lake as the agreed-upon lead agency. ¹

To the extent that it is of importance in this case, there can be no question but that the operation of a sewage disposal facility is a governmental, rather than a proprietary function. Steilacoom v. Thompson, 69 Wash.2d 705, 419 P.2d 989 (1966). Appellants concede that this is the general rule and refer to City of Scottsdale v. Municipal Court of Tempe, 90 Ariz 393, 368 P.2d 637 (1962); AIA Mobile Home Park, Inc. v. Brevard County, 246 So.2d 126 (Fla.1971); Kedroff v. Springfield, 127 Vt. 624, 256 A.2d 457 (1969). See also Pruett v. Dayton, 39 Del.Ch. 537, 168 A.2d 543 (1961); County of Westchester v. Village of Mamaroneck, 22 A.D.2d 143, 255 N.Y.S.2d 290 (1964).

When the activity is governmental, many jurisdictions hold that the acquisition or use of land for that purpose cannot be blocked merely because the area proposed for the placement of the facility is not zoned to permit the proposed governmental use. City of Scottsdale v. Municipal Court of Tempe, supra; City of Des Plaines v. Metropolitan Sanitary Dist., 48 Ill.2d 11, 268 N.E.2d 428 (1971); Decatur Park Dist. v. Becker, 368 Ill. 442, 14 N.E.2d 490 (1938); People ex rel. Scott v. North Shore Sanitary Dist., 132 Ill.App.2d 854, 270 N.E.2d 133 (1971); In re Petition of City of Detroit, 308 Mich. 480, 14 N.W.2d 140 (1944); State ex rel. Askew v. Kopp, 330 S.W.2d 882 (Mo.1960); State ex rel. St. Louis Union Trust Co. v. Ferriss, 304 S.W.2d 896 (Mo.1957); Green County v. City of Monroe, 3 Wis.2d 196, 87 N.W.2d 827 (1958). See also O'Connor v. Rockford, 52 Ill.2d 360, 288 N.E.2d 432 (1972); Town of Bloomfield v. New Jersey Highway Authority, 18 N.J. 237, 113 A.2d 658 (1955); County of Westchester v. Village of Mamaroneck, supra.

The rationale sometimes used to explain this result is that where the entity seeking to acquire the land for a governmental purpose has the power of eminent domain, that power being an attribute of sovereignty, is superior to the power to zone which is derived from the general police power as implemented by statute. As stated in City of Scottsdale v. Municipal Court of Tempe, supra 368 P.2d at 638:

Zoning finds its authority in the police powers, . . . while eminent domain is the right and power in a sovereign state to appropriate private property to uses for the public good. The right is "a necessary, constant and unextinguishable attribute," of sovereignty.

(Cite omitted.) Likewise, in County of Westchester v. Village of Mamaroneck, supra, the court said 255 N.Y.S.2d at page 294: broad principles of sovereignty require that a state or its agency or subdivision performing a governmental function be free of local control.

In the City of Des Plaines v. Metropolitan Sanitary Dist., supra, the court based its decision on statutory grounds, saying, 268 N.E.2d at page 430:

The statute clearly authorized the taking of the property in question in the City of Des Plaines. To find that the condemnation power of the district is subject to the restrictions of local municipal zoning ordinances would be to relegate the authority of the district to that of a private land owner, and would thereby frustrate the purpose of the statute. If the district is exercising power within the statutory grant, such exercise is not subject to zoning restrictions imposed by the host municipality.

This method of resolving the conflict between the power of eminent domain and the police power as exercised through zoning statutes has been criticized as overly simplistic. Governmental Immunity From Local Zoning Ordinances, 84 Harv.L.Rev. 869 (1970-71).

In some jurisdictions, rather than according automatic superiority to the power of eminent domain, courts have adopted a balancing of interests test wherein the court assumes the role of final arbiter of the public interest in land use planning problems. Brown v. Kansas Forestry, Fish and Game Comm'n, 2 Kan.App.2d 102, 576 P.2d 230 (1978); Town of Oronoco v. Rochester, 293 Minn. 468, 197 N.W.2d 426, 59 A.L.R.3d 1238 (1972); City of Fargo v. Harwood Township, 256 N.W.2d 694 (N.D.1977); Cf. St. Louis County v. City of Manchester, 360 S.W.2d 638 (Mo.1962).

Appellants urge us to reject the approach recognizing the superior power of eminent domain and adopt the balancing of interests test. We decline the invitation because in this case, and on this record, we are persuaded that the eminent domain test is proper in...