Opinion
No. 61612-9-I.
March 16, 2009.
Appeal from a judgment of the Superior Court for Skagit County, No. 07-2-01994-7, Dave Needy, J., entered March 28, 2008.
Affirmed by unpublished opinion per Leach, J., concurred in by Agid and Lau, JJ.
UNPUBLISHED OPINION
Skagit PUD created a new local utility district (LUD) and water supply system and imposed special assessments on property within the new LUD, including three parcels owned by the Pedersons. The Pedersons challenge these special assessments, claiming that their properties receive no special benefit from the water system because one parcel is unbuildable, one is undeveloped, and one has an adequate existing well. They also contend that their properties are exempt from assessment under chapter 84.34 RCW. Because the Pedersons did not present expert appraisal evidence showing that the water system would not increase the fair market value of these three parcels and did not show that any of these parcels had been designated for a current use classification under chapter 84.34 RCW, we affirm the trial court. We also hold that the Pedersons' challenge to the formation of the LUD is untimely and their claims that the PUD violated a special use permit or trespassed on private property are not properly before this court.
Background
On January 2, 2002, the Public Utility District No. 1 of Skagit County (PUD) adopted Resolution No. 1959-02, announcing its intent to form Local Utility District No. 29 (LUD No. 29) for the purpose of constructing and installing a water supply system for the North Bay View Edison Road area of Skagit County. The PUD notified property owners within the proposed LUD that a public hearing regarding LUD No. 29 would take place on February 5, 2002, and that all persons desiring to object to the proposed improvements and the formation of LUD No. 29 were required to file written protests by noon of the day the hearing was set.
Roger and Marsha Pederson own eight parcels within LUD No. 29. Roger Pederson timely protested the formation of LUD No. 29 and was given an opportunity to be heard at the February 5, 2002, hearing. Pederson later attempted to challenge, among other things, the formation of LUD No. 29 in a Land Use Petition Act (LUPA) petition. This court dismissed that appeal because the formation of LUD No. 29 was not a land use decision and therefore could not be raised by a LUPA petition.
See Pederson v. Skagit County, noted at 123 Wn. App. 1037 (2004) (Pederson 1).
After providing proper notice to property owners, the PUD held a hearing on the assessment roll on August 28, 2007. The PUD heard protests from Pederson and others at the hearing. The PUD subsequently adopted Resolution No. 2103-07, approving and confirming the assessment roll, on October 9, 2007. Three of the Pedersons' properties were assessed $12,509 each. On October 10, 2007, the PUD sent each owner who had protested the assessment roll, including the Pedersons, a letter informing them of RCW 54.16.160, which provides that any person aggrieved by the assessments shall perfect an appeal to the superior court within 10 days. The Pedersons filed a notice of appeal in Skagit County Superior Court on October 19, 2007, challenging the special assessments levied on three of their properties.
No assessments were levied on the Pedersons' other five parcels.
The Pedersons argue that their three properties do not benefit from the availability of public water because one parcel has an adequate onsite well, a second is undeveloped, and the third is unbuildable. They also challenge the formation of LUD No. 29, arguing that there were deficiencies in the petition process and that the PUD manipulated boundaries of LUD No. 29 to mislead property owners. Finally, the Pedersons argue that the PUD should not be allowed to assess their properties for improvements because the PUD has not obtained certain easements needed to install the water line for LUD No. 29.
The PUD filed a cross appeal assigning error to the superior court's denial of its motion to dismiss the Pedersons' appeal for failure to comply with statutory bond and transcript filing requirements. As conceded by the PUD at oral argument, we need not reach the issues raised in the cross appeal because we affirm the superior court's decision on its merits.
Standard of Review
The statutory standard of review for the assessments requires that a reviewing court
confirm the assessment insofar as it affects the property of the appellant unless the court shall find from the evidence that such assessment is founded upon a fundamentally wrong basis and/or the decision of the commission thereon was arbitrary or capricious; in which event the judgment of the court shall correct, change, modify, or annul the assessment insofar as it affects the property of the appellant.
An assessment is founded upon a "fundamentally wrong basis" where there is "`some error in the method of assessment or in the procedures used by the municipality, the nature of which is so fundamental as to necessitate a nullification of the entire LID, as opposed to a modification of the assessment as to particular property.'" Although this standard requires that the error be so fundamental as to undermine the entire assessment, the statute limits a reviewing court's remedy to alteration or nullification of the assessment only insofar as it affects the appellant's property. "Arbitrary and capricious" means "willful and unreasoning action, taken without regard to or consideration of the facts and circumstances surrounding the action. Where there is room for two opinions, an action taken after due consideration is not arbitrary and capricious even though a reviewing court may believe it to be erroneous."
Abbenhaus v. City of Yakima, 89 Wn.2d 855, 859, 576 P.2d 888 (1978) (quoting Cammack v. City of Port Angeles, 15 Wn. App. 188, 196, 548 P.2d 571 (1976)).
RCW 54.16.160; Abbenhaus, 89 Wn.2d at 859.
Abbenhaus, 89 Wn.2d at 858-59.
Judicial review of an assessment decision is strictly limited to the record of the proceedings before the local decision-making body.
Bellevue Assoc. v. City of Bellevue, 108 Wn.2d 671, 674, 741 P.2d 993 (1987).
Discussion
A. Assessment of the Pederson Parcels
The Pedersons argue that the PUD's assessment of their properties was arbitrary and capricious because one is unbuildable, a second is undeveloped, and the third has an adequate onsite well.
When reviewing an assessment for improvements, "[w]e begin with a presumption of the correctness of the action; the burden is upon one challenging the assessment to prove its incorrectness. . . ." We also presume that the improvement is a benefit, that the assessment is not greater than the benefit, that the assessment is equal or ratable to an assessment upon other property similarly situated, and that the assessment is fair.
Abbenhaus, 89 Wn.2d at 860.
Abbenhaus, 89 Wn.2d at 861 (quoting Philip A. Trautman, Assessments in Washington, 40 Wash. L. Rev. 100, 118 (1965)).
As an initial matter, there is nothing facially invalid about the PUD's assessment of the Pedersons' properties. The PUD obtained a report prepared by professional appraiser Jim E. Dodge of Macaulay Associates, Ltd. The special benefit to each parcel within the proposed LUD was estimated as follows:
Utilizing limited appraisal assignment valuation techniques, separate market value estimates are made for each parcel within the local utility district. The first is an estimate of market value without the proposed project and the second, with the project assumed completed within a reasonable time. The increase in value, if any, is the special benefit accruing to that parcel due to the project. Special benefits are then summed for all properties within the district and the final assessment figure obtained from the LUD Administrator.
The report stated that the project would create a special benefit (increase in value) of $20,000 each to three of the Pederson parcels.
Claims of unfairness, without supporting evidence of appraisal values and benefits, are inadequate to overcome the presumption of fairness. "The burden of proof shifts . . . only after the challenging party presents expert appraisal evidence showing that the property would not be benefited by the improvement." Appraisal evidence is required because a property is benefited by a local improvement if the fair market value of the property increases after the improvement.
Abbenhaus, 89 Wn.2d at 861.
Hansen v. Local Improvement Dist. No. 335, 54 Wn. App. 257, 262, 773 P.2d 436 (1989).
See Hansen, 54 Wn. App. at 262.
In Hansen v. Local Improvement District No. 335, an owner of property in a downtown Auburn improvement district challenged an assessment for a parking lot. The owner asserted that his property was not specially benefited by the improvement because of the distance between his property and the parking lot and because there was adequate parking on his property. The owner failed to present any appraisal or expert evidence at the public hearing to show that his property would not be benefited by the improvement. This court held that these bare assertions, without expert testimony, were inadequate to overcome the presumption in favor of the City.
54 Wn. App. 257, 773 P.2d 436 (1989).
Hansen, 54 Wn. App. at 258-59.
Hansen, 54 Wn. App. at 263.
Hansen, 54 Wn. App. at 263.
Hansen, 54 Wn. App. at 263.
In arguing that parcels P35014 and P34978 do not benefit from the water system, the Pedersons merely assert that parcel P35014 has an adequate onsite well that serves the single family residence there and that a well could be built on the currently undeveloped parcel P34978 if needed in the future. The Pedersons presented no expert appraisal evidence rebutting the presumption that the fair market value of these parcels would increase with the improvement. The Pedersons did submit three opinion letters, which each state that generally the market value of a property with an adequate well does not usually differ from that of a property with access to public water. However, these letters answered only the hypothetical question of whether the availability of public water affects the value of a property with a well and do not address the fair market value of the Pedersons' parcels with and without the improvement. In order to rebut the presumption that the assessment was fair, the Pedersons would have needed to present expert appraisal evidence showing that the fair market value of these specific parcels would not increase with the improvement.
In challenging the assessment of parcel P34976, the Pedersons merely assert that the parcel is currently undeveloped and that it is unbuildable. Again, they present no appraisal evidence showing that the fair market value would not increase with the improvement. On appeal, the Pedersons asked the superior court to consider documents obtained from the Washington Board of Tax Appeals, which state that parcel P34976 is unbuildable. However, these documents were not before the PUD when it determined the assessments and therefore may not be considered on appeal. However, even if this court were to consider the documents, they do not prove that the fair market value of parcel P34976 did not increase with the improvement. The decision of the Board of Tax Appeals, apparently rendered in 1984, states:
Abbenhaus, 89 Wn.2d at 858-59.
Pursuant to current state and county health code requirements an on-site septic system cannot be situated on the property to serve a residence. Due to the locations of wells on the two adjoining waterfront properties, there is no location on subject suitable for a septic drain field that is more than 100 feet from those wells. . . . While an off-site location for a septic drain field might be possible, it appears highly likely such would have to be located easterly and uphill, some distance from subject. No evidence was provided as to the feasibility or possible costs of an off-site system. Accordingly, under current conditions, development of a septic drain field system, whether on-site or off-site, it [sic] considered to be practically and economically infeasible. Subject is accordingly considered to be a non-buildable parcel of land.
(Emphasis added.) The tax board's 1984 decision does not prove that parcel P34976 would not benefit from the improvement because one of the reasons the parcel was unbuildable was the proximity of wells on two adjoining properties. With the availability of public water, these wells presumably would no longer be used, thereby making an onsite septic possible. In addition, the decision explicitly states that no evidence was considered regarding the feasibility of an offsite septic. Finally, even if the parcel is unbuildable, the Pedersons still have not shown that public water would not increase the value of the parcel in its current use as a recreational property. The required proof is expert appraisal evidence showing that the fair market value of the parcel would not increase with the improvement. The Pedersons have not overcome the presumption that the assessment of their parcels was fair.
Finally, the Pedersons argue that all three of their properties should be exempt from assessment under chapter 84.34 RCW. However, the Pedersons do not show that any of their properties has been designated for any current use classification under chapter 84.34 RCW.
Chapter 84.34 RCW allows counties to grant current use classifications to certain lands based on their open space, agricultural, or timber uses. An owner can apply for such a current use classification by making an application to the county assessor and following the form and fee requirements in RCW 84.34.030. If an application for classification is approved, the land may qualify for tax exemptions and other benefits under chapter 84.34 RCW based on its designated current use classification. For example, lands designated as farm and agricultural lands or timber lands, while classified as such, are exempt from special benefit assessments for improvements such as a domestic water supply. In addition, farm and agricultural land or timber land on which the right to future development has been acquired by the local, state, or federal government is exempt from special benefit assessments.
RCW 84.34.020, .037.
The Pedersons have not shown that their land has been designated for a farm and agricultural lands or timber lands current use classification or that the right to future development on their land has been acquired by any government. Instead, they argue that their properties' zoning classification of "rural reserve" serves similar purposes to the farm/agricultural and timber current use classifications and should therefore be similarly exempt. This argument is unpersuasive because the legislature drew the statutory exemption for farm and agriculture or timber current use classifications narrowly within the framework of chapter 84.34 RCW for the specific purpose of protecting agricultural and timber lands from development and maintaining a supply of agricultural and timber products in Washington State. The legislature made the decision regarding which lands to exempt in plain language that limits application of exemptions to those it expressly identified in chapter 84.34 RCW.
B. Formation of LUD No. 29
In a previous case, Pederson v. Skagit County, Pederson attempted to challenge the formation of the LUD in a LUPA petition. This court dismissed the claim because the formation of LUD No. 29 was not a land use decision and therefore could not be raised in a LUPA petition. We held that the formation of LUD No. 29 was not properly before the court and should have been brought in a separate action.
Noted at 125 Wn. App. 1037 (2004) (Pederson I).
See Pederson I, 2004 WL 2211743, at *2-3.
Pederson I, 2004 WL 2211743, at *3-4.
Here, the Pedersons again challenge the formation of LUD No. 29, arguing that the PUD failed to obtain sufficient signatures from landowners in the proposed district as required by RCW 54.16.140 and .150 and that the PUD manipulated the boundaries of the LUD to mislead property owners.
A challenge to an LUD must be served and filed no later than 30 days after the date of passage of the resolution ordering the improvement and creating the district. The LUD was formed on March 12, 2002, with the adoption of Resolution No. 1963-02. The notice of appeal in this case was filed on October 19, 2007, and was therefore untimely insofar as it challenges the formation of the LUD.
RCW 35.43.100. This statute applies to the creation of local utility districts through RCW 54.16.130, which provides in pertinent part: "Except as herein otherwise provided or as may hereafter be set forth by resolution, all matters and proceedings relating to the local utility district . . . shall be governed, as nearly as may be, by the laws relating to local improvements for cities and towns. . . ."
Acknowledging the untimeliness of their challenge, the Pedersons argue that they may raise the issue at any time because the PUD exceeded its jurisdiction when it formed LUD No. 29. We disagree.
First, the Pedersons once again argue that the PUD did not obtain the minimum number of signatures required to initiate the petition method of forming the LUD. However, where a utility district has authority to create a local improvement district by resolution, failure to secure the requisite signatures for a petition in favor of forming the proposed district is not a jurisdictional defect but merely an irregularity. RCW 54.16.140 grants public utility districts authority to order the formation of an LUD "either upon petition or resolution therefor." Thus, this court need not inquire into whether the petition contained the required number of signatures because the PUD has express authority to create LUDs by resolution.
Stallsmith v. Alderwood Water Dist., 37 Wn.2d 198, 209, 222 P.2d 836 (1950).
Stallsmith, 37 Wn.2d at 210.
Moreover, the petition method of forming an LUD does not require a majority of signatures, as the Pedersons argue. Rather, the PUD must order formation of an LUD if a petition in favor of forming the proposed LUD is signed by a majority of landowners within the proposed LUD. The PUD is required to hold a hearing to initiate the formation of the LUD if 10 percent of the landowners sign such a petition, but the PUD also has authority to order the improvement by resolution. Only where "a majority of owners . . . file prior to twelve o'clock noon of the day of the hearing . . . a petition protesting against the improvement" is the PUD divested of its authority to form the LUD. Here, only 2 of 27 landowners protested the formation of LUD No. 29, while 15 petitioned in favor of its formation. Thus, the PUD had jurisdiction to form LUD No. 29 under either the petition method or the resolution method.
Second, the Pedersons argue that the PUD did not have authority to change the boundaries of the proposed LUD. The thrust of the Pedersons' argument is that the PUD misled owners into believing that Bayview State Park was within the LUD and that the State would therefore shoulder some of the cost of the improvements. The Pedersons base their argument on Schmitt v. Cape George Sewer Dist. No. 1, arguing that the PUD used the inclusion of the park to obtain signatures for the petition, which was a misuse of those signatures.
61 Wn. App. 1, 809 P.2d 217 (1991).
However, this argument fails because, as explained above, the PUD did not need any signatures to order the formation of LUD No. 29 because it had authority to do so by resolution as long as a majority of landowners did not object.
Furthermore, this case is not analogous to Schmitt because here the PUD did not change the boundaries of the proposed LUD in order to inflate the percentage of signatures obtained. In Schmitt, a local sewer district formed a Utility Local Improvement District (ULID) under former RCW 56.20.020, which required the district to form the ULID if it received a petition signed by owners of at least 51 percent of the land area within the ULID. In determining that owners of 54.1 percent of the land area in the ULID had signed the petition, the sewer district commissioners excluded some of the land that was within the ULID. Division Two of this court held that the commissioners did not have statutory authority to exclude certain lands within the proposed ULID from their calculations. Although the calculations here are based on the number of owners of land rather than the land area, the statute addressed in Schmitt required formation of the ULID if owners of a majority of the land area petitioned for its creation, similar to how RCW 54.16.150 requires formation of the LUD if a majority of owners petition for its creation. However, Schmitt does not apply here because the PUD was not relying on the petitions to force formation of the LUD under RCW 54.16.150; the PUD was authorized to form the LUD by resolution or by petition of 10 percent of landowners under RCW 54.16.140. RCW 54.16.140 further authorizes a PUD ordering the formation of an LUD to "alter the boundaries of the proposed local district." Thus the changes to the boundaries of LUD No. 29 did not affect the PUD's authority to form LUD No. 29.
Schmitt, 61 Wn. App. at 3.
Schmitt, 61 Wn. App. at 3.
Schmitt, 61 Wn. App. at 6.
It is unclear from the record why the petitions are labeled as LUD No. 27 rather than LUD No. 29; however, this is irrelevant to the validity of the LUD. In all other documents in the record, the LUD is referred to as LUD No. 29. All of the owners who signed the petitions owned property within LUD No. 29. The resolutions and hearing notices and the discussion at the LUD formation hearing all refer to LUD No. 29. The PUD used the number of landowners in proposed LUD No. 29 to calculate the percentage of landowner petitions received. There is no evidence in the record that renaming the proposed LUD prejudiced the Pedersons or anyone else.
In summary, the Pedersons' challenge to the formation of LUD No. 29 is barred by the 30-day limitation period for appeals of local improvement districts in RCW 35.43.100. Alternatively, the Pedersons' arguments fail on the merits because the PUD had jurisdiction to form the LUD by either petition or resolution and had authority to change the boundaries of the LUD.
C. Easements
The Pedersons argue that the PUD cannot levy assessments because it has not obtained all easements required for construction of the water supply system. In support of their argument, they cite RCW 54.16.020. They also argue that the failure to obtain necessary easements before beginning construction on the project is a violation of the special use permit authorizing construction of the water supply system.
RCW 54.16.020 delineates the right of a PUD to acquire property rights and to exercise eminent domain in doing so. This statute does not address whether all property rights necessary to a project must be acquired before special benefit assessments may be levied for the project.
The questions whether the PUD has violated a special use permit or trespassed on private property are not before this court. The sole question before the court is whether the PUD's decision to levy special assessments of the Pedersons' properties was arbitrary and capricious or founded upon a fundamentally wrong basis. Therefore, the issue of whether the PUD needs to obtain easements from the Pedersons before constructing the water line is not properly before the court.
Conclusion
We affirm the trial court's dismissal of the Pedersons' appeal of the assessments against their properties.