Opinion
No. 60007-9-I.
June 23, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-14031-1, James D. Cayce, J., entered May 10, 2007.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Becker and Lau, JJ.
Lakehaven Utility District appeals a trial court's determination that neither the state constitution nor statute prohibit Pierce County from providing the sewer service to those residents of the City of Milton who reside in King County. RCW 36.94.190 permits a county to contract with a city, inside or outside of that county's borders, to establish, operate, and maintain a sewer system. The City of Milton, located partially in King and Pierce counties, contracted with Pierce County to provide sewer service to its residents. Article XI, § 11 of the Washington State Constitution does not prohibit a transfer agreement between a county and city, when both entities have the authority to operate a sewer system, a statute authorizes extraterritorial contracts, and both entities consent to the arrangement. We affirm.
FACTS
Pierce County owns and operates a regional sewer utility organized under chapter 36.94 RCW. Prior to 1994, the City of Milton, a municipal corporation, operated a sewer system, as authorized by chapter 35.21 RCW. The Milton city limits straddle the Pierce and King County border. Both Pierce County and Milton acknowledge that they are authorized to operate sewer collection and treatment systems and to enter into agreements regarding transmission, disposal and treatment of wastewater, and the operation of related facilities. Pursuant to this authority, in 1994, the two entities entered into a sanitary sewer system transfer agreement. The contract transferred the city's infrastructure to Pierce County in exchange for service to customers within the city limits and system improvements. The contract specified that the city "desires to transfer ownership of its sewer system, which is in need of certain improvements, to the COUNTY, and the COUNTY is willing to accept ownership and control of that CITY system for which it has adequate and appropriate treatment capacity and other resources." Currently, under the agreement, Pierce County provides sewer service to roughly 2,000 customers within Milton's city limits, including 209 residents of King County.
Lakehaven Utility District is a special purpose water and sewer district, authorized by Title 57 RCW. In 2004, property developer Land Lloyd Development requested that Lakehaven Utility District (Lakehaven) provide a sewer availability letter for undeveloped parcels located within the Milton city limits and within King County. Lakehaven provided this letter. But, Pierce County objected to Lakehaven's planned service of the Land Lloyd property. Lakehaven subsequently withdrew its letter of sewer availability letter, and this litigation ensued.
In April of 2006, Lakehaven filed a complaint for declaratory judgment in King County Superior Court. Under chapter 7.24 RCW, the Uniform Declaratory Judgments Act (UDJA), Lakehaven first sought a declaratory judgment stating that Pierce County has no authority to provide sewer services within the borders of King County. Second, Lakehaven also sought a declaratory judgment that specific contracts barred Pierce County from providing sewer services in King County.
In its answer, Pierce County asserted that Lakehaven had failed to join necessary and affected parties, specifically the City of Milton, City of Tacoma, King County, Washington Department of Ecology, and certain residents of King County. Pierce County also asserted an affirmative defense of estoppel. Lakehaven amended its complaint to include the City of Milton, City of Tacoma, King County, and Department of Ecology.
In January of 2007, Lakehaven filed a motion for summary judgment. It argued Pierce County lacked the constitutional and statutory power to own and regulate a sewer system in a portion of King County. Therefore, the 1994 contract between Pierce County and the City of Milton was void.
In its review of summary judgment, the trial court dismissed with prejudice all claims Lakehaven asserted against the City of Milton, City of Tacoma, King County, and Department of Ecology. The court denied Lakehaven's summary judgment motion.
In the same order, the trial court also granted declaratory judgment to Pierce County stating that the county "is entitled to own and operate a sewerage system within the City of Milton portions of King County." In this order, the superior court explicitly did not resolve whether Pierce County was entitled to exercise its jurisdiction and power to provide sewer service to Land Lloyd's property within the City of Milton portions of King County. A note indicates the issue will be resolved in a subsequent hearing in order to allow for appellate review. However, there is no transcript in the record of a subsequent hearing.
In May of 2007, the superior court entered a stipulated order of voluntary dismissal and final judgment. The parties stipulated to dismissal of Lakehaven's claim for declaratory judgment that Pierce County is barred by certain contracts from providing sewer services to the portions of Milton in King County. The court entered a final order declaring that Pierce County is entitled by law to own and operate a sewer system within those portions of Milton located in King County. The order also reiterated its dismissal with prejudice of all claims against the City of Milton, City of Tacoma, King County, and Department of Ecology.
Lakehaven timely appealed the final order. Lakehaven does not appeal the orders dismissing the City of Tacoma, King County, City of Milton, and Department of Ecology from the suit.
Lakehaven only assigns error to the declaratory judgment, not the stipulated voluntary dismissal.
DISCUSSION
All orders, judgments, and decrees under the UDJA may be reviewed as other orders, judgments, and decrees. RCW 7.24.070. In reviewing an appeal from a declaratory judgment we apply ordinary rules of appellate procedure. Simpson Tacoma Kraft Co. v. Dep't of Ecology, 119 Wn.2d 640, 646, 835 P.2d 1030 (1992). Here, Lakehaven presents issues of both constitutional and statutory interpretation. An appellate court reviews questions of statutory interpretation and constitutional construction de novo. State v. Ammons, 136 Wn.2d 453, 456, 963 P.2d 812 (1998); York v. Wahkiakum Sch. Dist. No. 200, 163 Wn.2d 297, 178 P.3d 995 (2008).
Although the trial court denied summary judgment and no cross motion for summary judgment was filed by Pierce County, the parties treat the standard of review as a granting of summary judgment. Appellate review on a granting of summary judgment is also de novo. Thompson v. Peninsula Sch. Dist., 77 Wn. App. 500, 504, 892 P.2d 760 (1995).
I. Article XI, § 11
Lakehaven argues the Washington Constitution, specifically Article XI, § II, prohibits Pierce County from operating a sewer system outside its territorial boundaries. Article XI, § 11 of the Washington Constitution states "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."
In Brown v. Cle Elum, the Washington Supreme Court limited the exercise of a municipality's police powers to its territorial limits. 145 Wash. 588, 589, 261 P. 112 (1927). Cle Elum sought to enforce a municipal ordinance that prohibited persons from swimming, fishing, or boating in Lake Cle Elum, located 6 miles outside the city limits. 143 Wash. 606, 606-07, 255 P. 961 (1927). The court held, "[t]his delegation of its police power by the state to various municipalities is strictly limited to the exercise of that power within the limits of such municipalities." Brown, 145 Wash at 589. The court noted that this restriction on extraterritorial exercise of police powers did not limit a municipality's rights and ability to protect interests outside its jurisdictional borders, "but, without a constitutional amendment, penal ordinances such as the one under consideration here can not be given extraterritorial effect." Id. at 591.
Lakehaven does not dispute that Pierce County can provide sewer services within its borders. Nor does it dispute that Milton has a right to provide sewer service to its residents. Lakehaven does not assert that Milton cannot contract for another entity to provide sewer services to its residents. It does not even dispute that Pierce County can provide sewer service to those residents of Milton who also are within Pierce County. The challenge is to the authority of Pierce County to provide sewer services to residents of Milton who reside in King County. Lakehaven argues that Brown requires this Court to hold Pierce County's operation of a sewer system within Milton is unconstitutional. We disagree.
The facts of this case are distinguishable from Brown. Unlike Brown, Pierce County does not seek to unilaterally impose its regulations or penal code outside its boundaries under the authority of Article XI, § 11. Rather, Milton invited, consented, and contracted with Pierce County to take over its system, to improve its system, and to provide sewer services to its residents. Pierce County is exercising police powers within the City of Milton pursuant to contract, not pursuant to its explicit constitutional grant of authority.
As articulated in Brown, Article XI, § 11 prohibits a municipality or county from undertaking unilateral acts of its police powers outside its borders. It does not prohibit the municipality or county from entering into a legislatively authorized contract with another municipality or county, which is in whole or part outside its borders, to perform functions for the latter that the latter had authority to provide within its borders.
State v. Plaggemeier, 93 Wn. App. 472, 969 P.2d 519 (1999) (holding a mutual aid agreement between five jurisdictions, valid under RCW 10.93.070(1), even though it allows officers to enforce traffic and criminal laws outside officer's jurisdiction). See also Interlocal Cooperation Act, chapter 39.34 RCW. Having decided Article XI, § 11 does not preclude such contracts, we need not determine whether this is otherwise allowable as a proprietary service or whether the exercise of police/regulatory power is merely incidental to providing the service.
II. Statutory Authority
Lakehaven claims there is no authority for a county to own or operate a sewer system in King County. Pierce County counters that RCW 36.94.190 expressly grants it the authority to contract with the City of Milton, including a transfer of the city's sewer service.
County utilities derive their powers to regulate and operate sewage, water, and drainage systems from chapter 36.94 RCW. The enabling statute expressly states:
The construction, operation, and maintenance of a system of sewerage and/or water is a county purpose. Subject to the provisions of this chapter, every county has the power, individually or in conjunction with another county or counties to adopt, provide for, accept, establish, condemn, purchase, construct, add to, operate, and maintain a system or systems of sanitary and storm sewers, including outfalls, interceptors, plans, and facilities and services necessary for sewerage treatment and disposal, and/or system or systems of water supply within all or a portion of the county. RCW 36.94.020.
The chapter establishes the complete authority of a county to construct, operate, and maintain a sewer or water system. Courts liberally construe the chapter in order to accomplish this purpose. RCW 36.94.910.
RCW 36.94.190 states:
Every county in furtherance of the powers granted by this chapter shall be authorized to contract with the federal government, the state of Washington, or any city or town, within or without the county, and with any other county, and with any municipal corporation as defined herein or with any other municipal corporation created under the laws of the state of Washington and not limited as defined in RCW 36.94.010, or political subdivision, and with any person, firm or corporation in and for the establishment, maintenance and operation of all or a portion of a system or systems of sewerage and/or water supply.
(Emphasis added.) The statute expressly allows Pierce County to contract with the City of Milton, a municipality partially situated outside of the county, for the establishment, maintenance, and operation. The contract between Pierce County and the City of Milton transfers all facilities and requires the County to own, operate, and maintain the city sewer system.
Lakehaven counters that these contractual provisions are limited to only those acts that further the purpose of the statute — to establish and maintain sewer and water utilities within the county. The plain language of RCW 36.94.190 allows for extraterritorial contracts, even those to provide and operate sewer and water services. Moreover, the contract is in furtherance of the statute's purpose, to provide sewer service to residents in order to safeguard public health and safety. RCW 94.900. The contract transferred ownership and operation of the city's sewer service in order to improve it. Pursuant to the contract with Milton, Pierce County currently provides sewer service to 2,000 customers within the City of Milton; only 209 of those are located within King County. The agreement furthers the power and purpose of the statute.
Second, Lakehaven argues that the term establishment in RCW 36.94.190 does not include the authority to own a city's sewer service. Lakehaven acknowledges that the word establishment means "to bring into being" and "to found and regulate" but argues this does not include ownership. RCW 36.94.140 states that in the operation of a system of sewer and/or water, the County "shall have full jurisdiction and authority to manage, regulate, and control it." RCW 36.94.140. Thus, the authorization in RCW 36.94.190 that permits a county to contract with a city for the operation of a sewer system necessarily includes full jurisdiction to manage, regulate, and control the city's sewer system. The statute requires liberal construction. Based on this construction, we hold that ownership is included in the statute's provisions to manage, regulate, and control.
RCW 36.94.190 provides express legislative authorization for Pierce County to contract with the City of Milton, in order to establish, operate, and maintain a sewer system, even in those portions of the city located in King County. But, Lakehaven contends it has a statutory priority over Pierce County to provide sewer service to the Land Lloyd property. It argues that RCW 36.93.090 and RCW 36.94.170 combine to create this statutory priority.
RCW 36.93.090 requires individuals seeking a change in a city's boundary, including the extension of permanent water or sewer service outside its existing service area to file notice of proposed actions with the boundary review board. A service area for a town, or special purpose district includes "all of the area within its corporate boundaries. "RCW 36.93.090 (4). RCW 36.94.170 states: "The primary authority to construct, operate and maintain a system of sewerage and/or water within the boundaries of a municipal corporation which lies within the area of the county's sewerage and/or water general plan shall remain with such municipal corporation. A county, after it has adopted and received the necessary approvals of its sewer and/or water general plan under the provisions of chapter 36.94 RCW may construct, own, operate and maintain a system of sewerage and/or water within the boundaries of a city or town with the written consent of such city or town."
Lakehaven contends the Land Lloyd property lies within its corporate boundaries and therefore it should be the proper authority to provide sewer service to Land Lloyd. All of the parties agree the property lies within the City of Milton boundary. Lakehaven is a water and sewer district formed under Title 57 RCW. Formation of a sewer district in whole or in part within city limits is permissible only with the consent of the city council through a formal resolution. RCW 57.04.020. The City of Milton did not consent to Lakehaven's operation within the city limits.
Lakehaven fails to establish it has a purely statutory right to operate within the borders of the City of Milton. On appeal, before this Court are purely legal questions regarding Pierce County's authority to operate in the portions of the City of Milton located in King County. We therefore decline to consider Lakehaven's arguments regarding any authority to provide sewer service within Milton under any contract.
We affirm.