Teter v. Clark County

• Decision Date: 08 August 1985
• Docket Number: No. 51173-0,51173-0
• Citation: 104 Wn.2d 227,704 P.2d 1171
• Parties: Kenneth E. TETER, Elmer Kauppila, Frank L. Akerill, Ira Knapp, Pete Rogers, Dave Sarss, Irene Larson, Sally Ross, Garver Gray, Joe Gesler, W.R. Wilson, Pete Van Den Bosch, Waldo Olson (Evergreen Airport), Jack Johnson, Theron Farris, John Mroczek, Dorothy Douglas, Dennis Hall, Myrth Hover, Dave Albeidings, Byron Albeidings, Evergreen Memorial Gardens, Inc., James Cotey, Gene Sorenson, Paul Barbeau, Charles Foil, James J. Powers, Ornal N. Kelly, P.L. Johnigan, Marion Nugent, Lloyd B. Tucker, Joe Stanker and Elmer Anderson, Appellants, v. CLARK COUNTY, Washington, a municipal corporation, and the City of Vancouver, Washington, USA, a municipal corporation, Respondents.
• Court: Washington Supreme Court

Page 227

104 Wn.2d 227

704 P.2d 1171

Kenneth E. TETER, Elmer Kauppila, Frank L. Akerill, Ira Knapp, Pete Rogers, Dave Sarss, Irene Larson, Sally Ross Garver Gray, Joe Gesler, W.R. Wilson, Pete Van Den Bosch Waldo Olson (Evergreen Airport), Jack Johnson, Theron Farris, John Mroczek, Dorothy Douglas, Dennis Hall, Myrth Hover, Dave Albeidings, Byron Albeidings, Evergreen Memorial Gardens, Inc., James Cotey, Gene Sorenson, Paul Barbeau Charles Foil, James J. Powers, Ornal N. Kelly, P.L Johnigan, Marion Nugent, Lloyd B. Tucker, Joe Stanker and Elmer Anderson, Appellants, v. CLARK COUNTY, Washington, a municipal corporation, and the City of Vancouver, Washington, USA, a municipal corporation, Respondents.

No. 51173-0.

Supreme Court of Washington,

En Banc.

Aug. 8, 1985.

R. DeWitt Jones, Vancouver, for appellants.

Arthur Curtis, Clark County Prosecutor, Richard S. Lowry, Deputy County Prosecutor, Jerry King, City Atty., Vancouver, for respondents.

PEARSON, Justice.

The primary issue in this case is whether the charges imposed upon appellants by respondents to finance respondents' water management department are unconstitutional where appellants' properties do not receive any "special benefit" from the water management activities. A related issue is whether respondents' legislative determination that appellants' properties are located within the Burnt Bridge Creek drainage basin and contribute to an increase in surface water runoff is arbitrary and capricious. The final issue is whether respondents acted arbitrarily or capriciously in computing the rates and charges to be assessed against appellants' properties.

We hold that the "special benefit" requirement of article 7, section 9 of the Washington Constitution does not apply to rates or charges established pursuant to RCW 36.89.080 or RCW 35.67. We further hold that respondents did not act arbitrarily or capriciously in determining which properties should be charged for the water management program nor in computing the charges. We therefore affirm the trial court in every respect.

The Burnt Bridge Creek drainage basin is an approximately 27-square-mile area, partly in Clark County and partly in the city of Vancouver. In the past 30 years, much residential and light industrial-commercial development has occurred in this area. As the area developed, several storm sewer and sanitary sewer projects were completed; however, a large number of septic tanks were also permitted by the City and County.

As early as 1966, engineering studies showed that the danger of flooding and pollution in Burnt Bridge Creek, which flows into Lake Vancouver, was increasing as the development in the area progressed. Later engineering studies showed that the flooding and pollution problems throughout the entire drainage basin were worsening.

The County and City responded to these problems. In 1978, Clark County adopted two resolutions, pursuant to RCW 36.89, which formed a storm and surface water department for management of the entire Burnt Bridge Creek drainage basin. The County's preexisting water control facilities were made a part of the new water department by the resolutions. Similarly, the City of Vancouver passed an ordinance, pursuant to RCW 35.67, which created a storm and surface water utility and transferred all preexisting water control facilities to that new utility.

The County and City then entered into an interlocal agreement, pursuant to RCW 39.34, authorizing joint operation, management, and financing of the newly formed water department or utility. The County was designated to be the principal operator of the joint water utility.

The County subsequently adopted another ordinance, pursuant to RCW 36.89.080, which set the charges to be paid by property owners whose property lies within the drainage basin. Appellants' property is so situated. However, because appellants refused to pay the charges, respondents placed liens upon their properties, pursuant to RCW 36.89.090. Appellants brought an action for declaratory judgment, challenging, under the state and federal constitutions, the right of the respondents to impose the charges. Appellants also challenged the method used by respondents to compute the charges.

Both parties moved for summary judgment. The trial court granted respondents' motion as to the constitutionality of the charges and as to the validity of the method used to compute the charges. Appellants appealed; this court accepted the appeal as an administrative transfer from Division Two of the Court of Appeals.

I

Appellants do not challenge that the City and County had statutory authority to form the water department. Rather, appellants challenge the inclusion of their properties among those which are to be charged for the operation of the department. Because their properties do not border on Burnt Bridge Creek, appellants argue that they do not specially benefit from the flood control services of the new water department. Furthermore, because their properties are served by sanitary sewers, appellants argue that their properties do not contribute to the pollution of the creek. Appellants finally argue that their properties do not contribute to an increase in surface water runoff.

Therefore, appellants contend that the charges imposed by respondents violate Const. art. 7, § 9, which states:

SPECIAL ASSESSMENTS OR TAXATION FOR LOCAL IMPROVEMENTS. The legislature may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of property benefited. For all corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes and such taxes shall be uniform in respect to persons and property within the jurisdiction of the body levying the same.

Appellants are correct that a special assessment may only be charged against property which is specially benefited by the project. In Heavens v. King Cy. Rural Library Dist., 66 Wash.2d 558, 563, 404 P.2d 453 (1965), this court stated that special assessments

are for the construction of local improvements ... appurtenant to specific land and bring a benefit substantially more intense than is yielded to the rest of the [city]. The benefit to the land must be actual, physical and material and not merely speculative or conjectural.

However, an examination of the statutes under which Clark County and the City of Vancouver acted shows that the charges imposed here are not special assessments.

The City of Vancouver acted pursuant to RCW 35.67. That statute authorizes a city to form and operate a "system of sewerage" (which includes storm or surface water sewers, RCW 35.67.010(3)) and to charge "rates and charges" for the use of such systems. The rates and charges must be uniform for the same class of customers or service. RCW 35.67.020.

That statute's predecessor, which was worded identically to the current law, was construed by this court in Morse v. Wise, 37 Wash.2d 806, 226 P.2d 214 (1951). In that case, the city built new additions to an old sewer system. The property owners who had already paid for the original sewers objected to paying for the additions, which would only serve new users and would be of no benefit to them. This court held that the statute authorizes the city to act under its police power and that the concept of special benefits was not relevant in that case.

The whole concept underlying [RCW 35.67] et seq., is different from that of the local improvement district plan. Under these statutes, the city acts pursuant to the police power granted to it to provide sewer service to protect the health of its inhabitants and to defray the expense by making service charges. The special benefit idea does not enter into the picture at all. We have examined the cases cited by appellants ... They are of no aid in the solution of the problem now before us, as they involve assessments according to special benefits where improvements were being made pursuant to statutes providing therefor.

(Citations omitted.) Morse, at 810-11, 226 P.2d 214.

This court also stated in Morse that special assessments are not the exclusive means of financing local improvements; improvements necessary to health and safety may be authorized under the police power and paid for "other than by local assessments". Morse, at 813, 226 P.2d 214. In such cases, Const. art. 7, § 9 is not implicated.

Clearly, in the present case the City had statutory authority under RCW 35.67 to impose the charges. Further, in Morse, we upheld the constitutionality of such charges even where no special benefit is created for the property owners. Thus, the next question is whether the County also had statutory authority to impose the charges and whether those charges are constitutionally valid where no special benefit is created for appellants.

II

RCW 36.89.030 authorizes counties to "establish, acquire, develop, construct ... storm water control facilities". The statute authorizes several methods of funding: (1) issuance of general obligation bonds (RCW 36.89.040), (2) creation of utility local improvement districts and charging of special assessments (RCW 36.89.110), (3) issuance of revenue bonds (RCW 36.89.100), and (4) adoption of a resolution "fixing rates and charges for the furnishing of service to those served or receiving benefits ... or contributing to an increase of surface water runoff " (RCW 36.89.080). (Italics ours.)

Clearly, the County did not proceed under the special assessment section, RCW 36.89.110. No utility local improvement district was formed. Neither did the County proceed under methods 1 or 3 above, issuance of bonds.

Rather, the County chose to proceed under the rates and charges method specified in RCW 36.89.080. That section of the statute authorizes the county to charge not only for services supplied to property owners, but also based upon contribution to increase of surface water runoff...