IN THE SUPERIOR COURT OF WASHINGTON FOR KITTITAS COUNTY

MICHAEL L. DARLAND and MYRNA ) 2 DARLAND, husband and wife, et al., ) ) 3 Plaintiffs, ) ) 4 v. ) ) 5 SNOQUALMIE PASS UTILITY ) DISTRICT, a Washington municipal ) 6 corporation, ) ) 7 Defendant. ) ***************
8 9 10 11 12 13 14 15 16 17 18 Plaintiffs' Motion for Partial Summary Judgment

NO. 04-2-00411-2 PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

CONE GILREATH LAW OFFICES

P.O. Box 499 200 East 3rd Avenue Ellensburg, Washington 98926 Telephone (509) 9253191 Fax (509) 925-7640

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Table of Cases

Statutes

Other Authorities

I. INTRODUCTION

A.

The Parties. 2 Plaintiffs, Michael and Myrna Darland ("Darland") and Louis Leclezio 3

("Leclezio"), are the owners of approximately 76.8 acres of unimproved real 4 property 5 ("the Property") situated east of Snoqualmie Pass in Upper Kittitas County. 6The Property abuts Mt. Grandeur, and includes a portion of Gold Creek. The Property consists of four separate, contiguous tax parcels (Parcel 7 Nos. 22-11-15010-0001, 22-11-15010-0003, 22-11-15010-0004, and 22-118 15010-0005). 9 As admitted at paragraph 1.3 of its Answer in this action,

defendant Snoqualmie Pass Utility District ("the District") is a Washington 10 state municipal corporation which owns and operates a public water and 11 sewer system serving portions of Kittitas County. 12 entirely within the District.1 13 B. Overview of Issues and Purpose of this Motion. 14 In connection with forming Utility Local Improvement District ("ULID") 15 No. 4, for16 purpose of constructing certain sewer improvements, and ULID the No. 7, for the purpose of constructing certain domestic water system 17 improvements, the District assessed the Property for those improvements. 18 Plaintiffs 19 and/or their predecessors-in-interest have paid those assessments in full. However, the water and sewer main lines terminate far short of the 20
21 1For the Court's reference, an aerial view of the property, showing its location in relation to22 the Snoqualmie Pass area and Gold Creek, is attached at Exhibit A to the concurrently filed Leclezio declaration. Although the exhibit shows a development proposed by Leclezio, the property is in fact presently undeveloped. 23

The Property is located

Plaintiff's Motion for Partial Summary Judgment Page 1

24

boundary of the Property. The land between the terminus of the water and 1 sewer mains and the Property is privately owned by third partiesThird 2 parties privately own the land between the terminus of the water and sewer 3 mains and the Property. 4 There are no public easements or other access

rights to 5 run the main lines to the Property. Plaintiffs contend that the District is legally obligated, at a minimum, 6 to extend the water and sewer mains to the boundary of each of the four 7 separate 8 tax parcels comprising the Property, including obtaining all easements, permits, and so forth, necessary to do so; further, that all 9 related costs are to be borne by the District. 10 The District contends

otherwise, claiming that this undertaking is the obligation of the Property 11 owners. 12 Plaintiff also contends that the water and sewer mains must be of sufficient13 capacity to deliver 400 gallons per day ("gpd") of water/sewer service. 14 Plaintiffs seek to have these issues determined as a matter of law by this motion for partial summary judgment.2 15
16

II. STATEMENT OF UNCONTROVERTED FACTS

A.

Plaintiffs' Acquisition of the Property and the Formation of 17

ULID Nos. 4 and 7. 18

19 2The remaining issues raised by plaintiffs' complaint are reserved for trial. Likewise reserved for trial is plaintiffs' contention that, not only is the District legally obligated to 20 extend the water and sewer mains to the boundary line of each of the four tax parcels comprising the Property, but to also extend the water main the water line from the main to reach up to at least 230 parcels within the boundaries of the Property, and to extend the 21 sewer main the sewer line from the main to reach the boundary of at least 38 such parcels, since plaintiffs' assessments were based upon these numbers, which were determined 22 solely by the District. Because there are arguably triable issues of material fact relating to these other matters, partial summary judgment is sought solely on the issues presented. 23

Plaintiff's Motion for Partial Summary Judgment Page 2

24

In 1977, plaintiffs' predecessor-in-interest, Michael Graf Von Holnstein 1 ("Von Holnstein"), acquired the property from Boise Cascade Home & Land 2 Corporation. Von Holnstein was the owner of record when ULID Nos. 4 and 7 3 were formed. On or about June 1, 1989, Von Holnstein sold the Property to 4 Miller Shingle Company, a joint venture investment group that included 5 Plaintiff Leclezio. Miller Shingle Company,Leclezio who then formed as part 6 of a joint7venture investment group that included plaintiff Lecleziowith Miller Shingle Company. On or about June 12, 2003, Miller Shingle Company the 8 joint venture comprising Leclezio and Miller Shingle Company sold the 9 Property 10 plaintiffs Leclezio and Darland.3 to On 11 about May 19, 1982, pursuant to Resolution No. 82-3, the or District formed ULID No. 4 for the purpose of constructing certain sewer 12 improvements within the District.4 13 On 14 about June 24, 1987, pursuant to Resolution No. 87-17, the or District formed ULID No. 7 for the purpose of constructing certain domestic 15 water system improvements.5 In both resolutions, the District represented 16 that "the Board of Sewer Commissioners gave due consideration to the 17 special benefits to be received by each lot, tract and parcel of land shown 18 on [the assessment] roll"; and, at Section 2 thereof, declared: 19 Each of the lots, tracts, parcels of land and other property 20 shown upon the assessment roll (I think we should, either
3See Leclezio declaration at paragraphs 1 and 2, and Exhibit B thereto. 21 4Id.22 paragraph 15, and Exhibit F thereto. at 5Id.23 paragraph 17, and Exhibit H thereto. at

Plaintiff's Motion for Partial Summary Judgment Page 3

24

here or later in this document, include the emphasis on the 1 subdivision down to the finest grain, that is the lot, for nowhere else can a hookup be used) is declared to be specially 2 benefited by the proposed improvement in at least the amount charged against the same and the assessments 3 appearing against the same are in proportion to the several assessments appearing on such roll. There is 4 levied and assessed against each lot, tract, parcel of land and other property appearing on the roll the amount finally charged 5 against the same thereon.6 Under ULID No. 4, the District assessed all property owners the sum of $1,275 for each ERU (equivalent residential unit) of sewer service.
8 9 7 6

The

District assessed the Property on the basis of 38.37 ERU's (thus assigning 38 actual sewer hook-ups to the Property).
10 11 12 13 14 15 16 17

Accordingly, the Property was

assessed $48,921.75 (38.37 x $1,275) under ULID No. 4.7 Under ULID No. 7, the District assessed the Property on the basis of 230.07 ERU's of water service; thus, the Property, though undeveloped, was assigned 230 actual water hook-ups.8 Each property (do you want to expand this to state lot, tract, parcel of land and other property shown upon the assessment roll? within the District was assessed $710 per ERU.9

Accordingly, the Property was assessed $163,349.70 (230.07 x $710) under ULID No. 7. An ERU was defined for purposes of ULID No. 7 as the equivalent
18 6Id. at Exhibit F, Section 2, and Exhibit H at Section 2. (Emphasis added.) 19 7Id. at paragraphs 8, 9, 16, and 19, and Exhibits H and J thereto. 20 8Id. at paragraphs 8, 9, 18, and 19, and Exhibits I and J thereto. 21 9See declaration of Richard Kloss, dated June 10, 2003, at paragraph 3. Mr. Kloss was the superintendent of the District from 1980 until July 2000, and was responsible for 22 the day-to-day operations of the District. See, also, Leclezio declaration at paragraphs 9 and 24, and Exhibits I and O thereto. 23

Plaintiff's Motion for Partial Summary Judgment Page 4

24

of 400 gallons per day (gpd) of water. 1

Indeed, the District's own records

state: "Each lot under one acre will be guaranteed a 400 gpd hook-up. Land 2 over one3 acre will be guaranteed three residential equivalents (1,200 gpd) per acre."10 4 The total assessments established by the District for ULID Nos. 4 and 7 5 were $2,520,137.80 ($1,071,886.86 for ULID No. 4 + $1,448,251 for ULID No. 6 7). Of this total, 7 the Property was assessed the principal amount of

$212,271.45 ($48,921.75 for ULID No. 4 + $163,349.70 for ULID No. 7). 8 Thus, with the formation of the ULIDs the Property was assessed between 9 8% and 10 of the total assessments levied, levied under the two ULIDs 9% ($212,271 $2,520,137).11 11 B. Commitments and Representations Made by the District to all 12 Property Owners and Relevant Chronology of Events. In a regular meeting of the District's Board of Commissioners, dated January 8, 1986, in which interested members of the public were present, the following discussion occurred: 16 Pam Nelson [the District Clerk] then stated that the Board needs to make a decision on whether or not this project for water will 17 allow the District to give the lot owners prepaid water hookups...The Clerk stated that if this is to be done is [sic] should be 18 passed formerly [sic], because she does not want to have property owners calling her when they get ready to build and 19 yelling that they have already paid for water once, why do they have to do it again. The Board discussed this in full and it was 20 decided that they would grant prepaid hook-ups on the
10Id. at paragraph 20 and Exhibit K thereto; see, also, id. at paragraph 22, and 21 Exhibit M thereto. 22 11See Leclezio declaration at Exhibit F at Section 1; Exhibit H at Section 1; and paragraph 23 9. 15 14 13

Plaintiff's Motion for Partial Summary Judgment Page 5

24

water as they already had them for the sewer from ULID 1 No. 4.
2 Superintendent Kloss then asked the Board that if the District is giving each lot one prepaid hook-up, does the system have the 3 capacity to promise them water and will it be available. The Board stated that if the Pass-wide water system goes there will be 4 enough water available... .12

On July 2, 1986, the District issued a letter to all property owners, including plaintiffs' predecessor-in-interest, Von Holnstein, in advance of the formation of ULID No. 7. The letter stated, in relevant part: "This method of payment allows all land over 1 acre to be guaranteed 3 residential equivalent hook-ups (1,200 gpd). Lots under 1 acre would be entitled to one residential equivalent hook-up." 13 Thus, the District was guaranteeing to each property owner 400 gpd of water for each hook-up (1,200 gpd 3).
12 13 14 15 16 17 11 10 9 8 7 6

In a regular meeting of the District's Board of Commissioners, dated December 10, 1986, in which interested members of the public were again present, the District represented to the property owners within the boundaries of ULID Nos. 4 and 7 that the water and sewer mains would be made available to each property as follows: 18 The Board of Commissioners stated that this does not include any distribution system for water and that it only runs the 19 water mains by the property making water available to them, this is also true for sewer.14
20 12Id. at paragraph 21, and Exhibit L thereto. (Emphasis added.) 21 13Id. at paragraph 22, and Exhibit M thereto. 22 14Id. at paragraph 23, and Exhibit N thereto. (Emphasis added.) 23

Plaintiff's Motion for Partial Summary Judgment Page 6

24

(NOTE: On March 11, 1987 page 3 of meeting minutes, Supt. Kloss and 1 Commissioner Smith discussed dropping Von Holnsteins property from the 2 assessment or reducing the assessment, but stated that however this will 3 increase 4 the assessment (to the overall remaining district mine) Further, Supt Kloss noted the difficulty in getting a permit to cross under Coal Creek 5 to Hunters and Von Hlonsteins properties. Commissioner Smith stated that 6 they would confer with Group Four, Inc. for an estimate. 7 On 8 June 24, 1987, a public hearing was held to finalize the assessment roll for ULID No. 7. During that public hearing, 9 the District represented that the assessments were for guaranteed hook-ups, and that the District was 10 guaranteeing water by bringing main lines past the owners' property. Page 15 of the minutes of the public 11 hearing contains the following representations: Supt. Kloss: Property under one acre is entitled to 12 one hook-up and for anything above that you have to pay a hook-up fee - $710 is prepaying that hook-up.
13 14 15

Sec. DeBruler: These are guaranteed hook-ups. We are guaranteeing you water. This ULID #7 is bringing water in trunk line past your property.15

On 16 31, 1987, approximately one month after the formation of ULID July No. 7, the District sent a letter to all existing homeowners, authored by 17 District Superintendent Kloss, wherein the District again represented that it 18 was the District's responsibility to bring the water to the property line of the 19 owners' property/properties.16 20
15Id. at paragraph 24, and Exhibit O thereto. (Emphasis added.) 21 16See Leclezio declaration at paragraph 26, and Exhibit P thereto; see, also, Kloss 22 declaration (dated June 10, 2003) at paragraph 9, and Kloss declaration (dated November 8, 2004), at paragraph 4. 23

Plaintiff's Motion for Partial Summary Judgment Page 7

24

D.

Additional Representations Made by the District to Plaintiff 2

Leclezio3Specifically. The District's records make clear that Von Holnstein did not want the 4 Property 5included in ULID No. 7. The District's Board of Commissioner's

minutes from the meeting of April 8, 1987, contained the following entry: 6 Commissioner DeBruler read the letter of protest from Mr. Von 7 Holnstein aloud to the Board members. Mr. Von Holnstein's property is 76 acres, abuts Mt. Grandeur. Mr. Von Holnstein 8 wants out because he has no legal access because of easements. Supt. Kloss explained to the Board members the 9 adjoining property owners and the neighboring easement problems. Easement possibilities were discussed by the Board 10 and it was suggested that a response to Mr. Von Holnstein be made as soon as possible.17
11

Von Holnstein either refused or was unable to pay the full amount of 12 the District's assessments against the Property; therefore, the District 13 charged 14 him penalties and interest on the unpaid assessments and, by 1989, had threatened Von Holnstein with foreclosure proceedings on the 15
18 Property.16

In 17 1989, acting on behalf of his joint venture with Miller Shingle Company, plaintiff Leclezio approached Von Holnstein about purchasing the 18 Property,. Subsequently 19 Leclezio formed a joint venture with which Miller

20 17See Leclezio declaration at paragraph 26, and Exhibit Q thereto at page 3. A written protest on behalf of Von Holnstein was also read into the record of the public hearing of 21 June 24, 1987, as reflected at pages 14-15 of the transcript of said hearing (see Exhibit O to the Leclezio declaration). 22 18See Leclezio declaration at paragraphs 4 and 6. 23

Plaintiff's Motion for Partial Summary Judgment Page 8

24

Shingle which eventually acquired by statutory warranty deed dated June 1, 1 1989. Prior to closing the deal, Leclezio examined the District's records and 2 spoke with the District's superintendent, Mr. Kloss, regarding the status of 3 the water and sewer services available to the Property.19 4 Among other

things, Leclezio was shown the District's Hook-up Status Ledger showing 5 that the 6 Property was entitled to receive 38.37 ERU's of sewer service and 230.07 ERU's of domestic water service. Leclezio also confirmed that an ERU 7 was the equivalent of 400 gallons per day (gpd) of water.20 8 Mr.9Kloss represented to Leclezio that these sewer and water hook-ups had been guaranteed by the District, and that the District had also 10 guaranteed delivery of water and sewer lines to the boundary of each parcel 11 of property within the District.21 12 Relying on the District's express

representations to him, as well as upon the District's records he reviewed 13 confirming those representations, Leclezio decided that his joint venture 14 investment group should purchase the Property from Von Holnstein.22 15 Accordingly, Leclezio/Miller Shingle Company purchased the Property 16 from Von17 Holnstein, and agreed to pay to the District all outstanding unpaid
18 19See Leclezio declaration at paragraphs 3 and 4; see, also, Kloss declaration (dated November 8, 2004) at paragraphs 2 and 4. 19 20See Leclezio declaration at paragraphs 7 and 8, and Exhibits I, J, K, and M thereto; 20 see, also, Kloss declaration (dated November 8, 2004) at paragraphs 2 and 3. 21See Leclezio declaration at paragraph 7 and 8; see, also, Kloss declaration (dated 21 November 8, 2004) at paragraph 4, and Kloss declaration (dated June 10, 2003) at paragraphs 4, 6, and 9. 22 22See Leclezio declaration at paragraph 8. 23

Plaintiff's Motion for Partial Summary Judgment Page 9

24

assessments on the Property, as well as the penalties and interest charged 1 thereon.23 The interest and penalties alone total substantially more than the 2 original principal amount of the total water and sewer assessments. 3 All

assessments, plus penalties and interest, have been paid in full. In total, the 4 Property 5owners have paid to the District the sum of $492,781.37 in assessments (including penalties and interest) levied against the Property 6 since Von Holnstein acquired title, including all assessments under ULID Nos. 7 4 and 7.24 8 In further reliance upon the representations that the Property would 9 have guaranteed water and sewer hook-ups, in 1989, Leclezio sought to 10 have the11 Property rezoned from forest and range to planned commercial zoning. On September 12, 1989, the Board of Kittitas County Commissioners 12 approved the adoption of planned commercial zoning for the Property after 13 Leclezio 14 was able to represent to the Board of Kittitas County

Commissioners that the property was servred by water and sewer .25 15 In or around June of 2001, Leclezio received a six million dollars offer 16 from Trendwest* to purchase the Property, subject to confirmation of 17 available18 water and sewer utilities. By letter dated June 2, 2001, Leclezio notified the District that he had a ready, a willing and able buyer to 19 purchase20 the Property, and requested the District to confirm in writing the
23Id. at paragraphs 8 and 9. 21 24Id. at paragraph 9. 22 25Id. at paragraph 10, and Exhibit C thereto. 23

Plaintiff's Motion for Partial Summary Judgment Page 10

24

available1 water and sewer hook-ups for the Property.26 (Need for affidavit from Moyer at this stage?) 2 By letter dated July 18, 2001, the District

declined 3to confirm the availability of water and sewer hook-ups to the Property,4 and instead referred Leclezio to the District's newly adopted resolution imposing a temporary moratorium upon the issuance of any new 5 Certificates of Availability for water.27 Beginning with this letter, the District 6 has taken the position that the assessments it imposed, and which have 7 been paid in full, do not entitle the Property to a guarantee of 230 water and 8 38 sewer9 hook-ups. Furthermore, it is also the District's position that it has no obligation to extend the water and sewer mains from their present 10 terminus 11 at least the boundary of the four separate parcels comprising to the Property.28 12
13

III. RELIEF REQUESTED

Plaintiffs seek an order establishing the following: 14 (1) 15 that the Property is entitled to receive 230.07 ERU's (equivalent residential units) of water service and a guaranteed 38.37 ERU's of sewer 16 service; 17 (2) 18 that an ERU is defined for purposes of ULID No. 7 as the
19 26Id. at paragraphs 11 and 13, and Exhibit D thereto. 20 * At the time Trendwest was developing Mountain Star Resort and concluded that ownership of the Leclzio/Miller property would compliment their overall development vision for the area. 21 27Id. 22 28Id. at paragraphs 11, 12, 13, and 14, and Exhibits D and E thereto. 23

Plaintiff's Motion for Partial Summary Judgment Page 11

24

equivalent of 400 gallons per day (gpd) of water; and 1 (3) 2 that the District is obligated to, and shall, extend the water and

sewer trunk lines mains to at least the boundary of each of the four separate 3 tax parcels comprising the Property, with such lines mains having the 4 capacity 5 deliver at least 400 gallons per day (gpd) of water. to
6

IV. ISSUES PRESENTED Did the District guarantee that the Property would

Issue No. 1: 7

receive 230.07 ERU's of water service and 38.37 ERU's of sewer service as a 8 "special benefit" to the Property by assessing the Property for said service, 9 when all 10 assessments have been paid in full?
11

Short Answer:

Yes. In connection with the formation of ULID

Nos. 4 and 7, the District represented that the assessments guaranteed 12 water and sewer service based upon the number of ERU's (hook-ups) 13 assessed14 against the Property (230.37 ERU's of water service and 38.37 of sewer service). 15 Furthermore, unless such water and sewer service is

guaranteed, the Property has received no "special benefit" for paying its 16 assessments. 17 Issue No. 2: 18 Is an ERU defined for purposes of ULID No. 7 as the

equivalent of 400 gallons per day (gpd) of water? 19

20

Short Answer:

Yes.

In forming ULID No. 7, the District

expressly represented an ERU to be the equivalent of 400 gpd of water. 21 Issue No. 3: 22
23

Is the District obligated to extend the water and

Plaintiff's Motion for Partial Summary Judgment Page 12

24

sewer mains to at least the boundary of each parcel comprising the 1 Property,2 with sufficient capacity to deliver and to service at least 400 gallons Per Water And Sewer Hookup per day (gpd) of water? 3
4

Short Answer:

Yes.

The District expressly represented that

the assessments paid on the Property entitled it to receive 230.07 ERU's of 5 water service (with an ERU defined as the equivalent of 400 gpd of water for 6 purposes7 of ULID No. 7), and to receive 38.37 ERU's of sewer service. The District also expressly represented that it was responsible for extending the 8 water and sewer mains for such service to the boundary of each parcel of 9 property 10 within the District. The Property is comprised of four separate tax parcels. 11
12

V. EVIDENCE RELIED UPON

This motion is supported by the concurrently filed declaration of Louis 13 Leclezio; 14the two concurrently filed declarations of the District's

Superintendent during the relevant time, Richard Kloss, dated June 10, 2003, 15 and November 8, 2004; and the pleadings and records on file with the Court. 16
17

V. ARGUMENT AND AUTHORITIES

A.

The Law re Summary Judgment. 18 The purpose of summary judgment is to avoid a useless trial, and to 19

test, in advance of trial, whether evidence to sustain the allegations actually 20 exists.29 21 Summary judgment is proper when the pleadings and affidavits show that no genuine issue of material fact exists, and the moving party is 22
29Almy v. Kvamme, 63 Wn.2d 326, 329, 387 P.2d 372 (1963). 23

Plaintiff's Motion for Partial Summary Judgment Page 13

24

entitled to judgment as a matter of law. 30 A material fact is one upon which 1 the outcome of the litigation depends.31 2 Although the moving party bears the initial burden of showing the 3 absence 4 an issue of material fact, once this initial showing is met, the of burden shifts to the non-moving party, who must set forth specific, 5 admissible facts showing that there is a genuine issue of material fact for 6 trial.32 The moving party can satisfy his initial burden in either of two ways: 7 (1) he can set forth his version of the facts, and allege that there is no 8 genuine issue as to those facts; or (2) he can simply point out to the Court 9 that no evidence exists to support the non-moving party's case.33 10 In ruling on a summary judgment motion, the court should consider 11 the evidence, and the reasonable inferences there from, in a light most 12 favorable to the non-moving party.34 Where reasonable minds can reach but 13 one conclusion from the admissible facts in evidence, summary judgment 14 should be granted.35 15 Applying these well-established principles to the instant case leaves no 16
17 30CR 56(c); Hollis v. Garwall, Inc., 137 Wn.2d 683, 690, 974 P.2d 836 (1999). 18 31Harris v. Ski Park Farms, 120 Wn.2d 727, 737, 844 P.2d 1006 (1993). 19 32CR 56(e); Young v. Key Pharmaceuticals, 112 Wn.2d 216, 225-26, 770 P.2d 182 (1989). 20 33Howell v. Bloodbank, 117 Wn.2d 619, 624, 818 P.2d 1056 (1991); Guile v. Ballard Community Hosp., 70 Wn. App. 18, 21, 851 P.2d 689 (1993). 21 34White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997). 22 35Id. 23

Plaintiff's Motion for Partial Summary Judgment Page 14

24

doubt that partial summary judgment in favor of plaintiffs is appropriate. 1 B. The District Contractually Obligated Itself to Deliver 230.07
3 4 5 6 7 2

ERU's of Water Service and 38.37 ERU's of Sewer Service to at Least the Boundary of Each Separate Tax Parcel Comprising the Property. The relationship between plaintiffs and the District is one of contract. As stated by the Court of Appeals in Vine St. Comm'l v. City of Marysville, 98 Wn. App. 541, 989 P.2d 1238 (1999): We8conclude that property owners who petition for the formation of a ULID, whose properties are then assessed for the special 9 benefits thereby accruing, and who subsequently pay their assessments in full, are entitled to receive the special benefits for 10 which they have paid. [Footnote omitted.] In this respect, the relationship with the governing body that formed the ULID is 11 indistinguishable from the relationship between parties who enter into individual contracts with the governing body for utility 12 services ... In both situations, there is a contract in the usual sense of that word... .36
13

In reaching this holding, the Court of Appeals cited with approval the 14 Illinois case of Catholic Foreign Mission Soc'y of Am. v. Village of Glen Ellyn, 15 339 Ill. App. 565, 90 N.E. 2d 653 (1950) to stand for the proposition that, 16 Mandamus will lay to require [a] municipality to connect 17 property to [a] sewer system where [the] property has been assessed for the improvement and [the] assessment had been 18 paid, and that [the] property cannot be assessed unless benefited by present use of [the] sewer or future use of 19 such a nature that [the] owner can enforce his rights and thereby secure benefits.37
20 21 36Id. at 549-50. 22 37Id. at 549, fn. 3 (Emphasis added.) For the Court's reference, a copy of the Illinois decision will be provided along with the Judge's working copies. 23

Plaintiff's Motion for Partial Summary Judgment Page 15

24

In 1 rejecting the City of Marysville's argument that a ULID is not a contract 2 but, instead, simply a mechanism for financing the infrastructure, and nothing more, the court stated that landowners have "the expectation 3 that the properties will be specially benefited by the improvement, for which 4 they will5 be assessed in direct proportion to the amount of the special benefit that each of them will enjoy." 38 The court further stated: 6 It begs reason that a property owner might petition for the 7 formation of a ULID knowing that the property will be assessed for the special benefit, and that the assessment will become a 8 lien against the property, and then pay that assessment in full, with any other expectation then that when the utility 9 becomes operational, he or she will be able to hook up to it - thereby realizing the full value of this special 10 benefit.39 The court concluded its opinion with the following statement: 12 What a municipality cannot do in the formation of a ULID it also cannot do after the fact - it cannot, without paying 13 compensation, retroactively impose conditions that effectively deprive property owners of the special benefits for which they 14 have become obligated by assessments against their properties, after those assessments are paid in full.40 Somewhere above I 15 think the language from the commissioners regarding whether or not to bring this property into the ULID and then concluding 16 that to not bring it in would raise the rates to all is an important matter to juxtapose with some of these findings. 17 WOW! I love it! Thank you for finding that strong logical precedent!!!
18 11

The Vine St. Comm'l case, and the Illinois case cited with approval 19 therein, are squarely in point. In connection with the formation of ULID Nos. 20
38Id. at 548. 21 39Id. (Emphasis added.) 22 40Id. at 553. 23

Plaintiff's Motion for Partial Summary Judgment Page 16

24

4 and 7, 1 the District assessed the Property for 38.37 ERU's of sewer service and 230.07 ERU's of water service (defining an ERU to be 400 gpd of water 2 for purposes of ULID No. 7). The District also represented that water and 3 sewer service would be delivered to the boundary of each parcel within the 4 District. 5Accordingly, the District is contractually bound to deliver at the very minimum to the boundary of each separate tax parcel comprising the 6 Property 7 sufficient water and sewer service for 230.07 ERU's of water and 38.37 ERU's of sewer service. 8 C. Unless the District Performs its Contractual Duty to Run the 9

Sewer and Water Mains to the Property, the Property has Received 10 No "Special Benefit" From the Assessments. The egregious nature 11 of this reality is accentuated when one considers that the owners of 12 the 76.813 acres paid close to 9% of the entire assessments! The District cannot assess the Property for water and sewer 14 improvements unless those improvements in fact specially benefit the 15 Property,16 which they do not. A review of relevant Washington decisions

conclusively establishes this point. One such recent case is In re Towner 17 Util. L.I.D., 115 Wn. App. 90, 64 P.3d 71 (2003).41 18 In that case, the court

stated: 19 A property within in ULID cannot be charged for particular 20 improvements simply by virtue of being within the boundaries of a ULID. `Only that portion of the cost of the local improvement 21 which is of special benefit to the property can be levied against
22 41Also reported as Douglass v. Spokane County, 115 Wn. App. 900, 64 P.3d 71 (2003). 23

Plaintiff's Motion for Partial Summary Judgment Page 17

24

the property.' 42 Doug: I think that this language is on point for our1later trial as to the difference between what we received and others in the district received for equal payment.
2

The court made clear that no special benefit accrues to an 3 owner's 4property when the property does not connect to any of the LID improvements: 5 No special benefit accrues to the Douglasses' properties when the6 properties do not connect to any of the ULID No. U966 improvements and the sanitary flow from the Douglasses' 7 properties does not enter any portion of the improvements. ...Without special benefit, the assessment must be nullified.43
8

In the case at bar, the District's water and sewer mains terminate a 9 significant distance ( do we provide the measurements?) from the Property. 10 Furthermore, the land between the Property and the terminus of the water 11 and sewer mains is owned by private parties, with no existing easement in 12 favor of the Property to connect to the District's mains. Although the District 13 has the statutory authority and power to obtain such an easement, plaintiffs 14 do not.4415 The present District's present contention, that it is plaintiffs' obligation, at their cost, to extend the mains to the Property, rests upon the 16 speculative premise that the intermediate private property owners would 17 grant an 18 easement to plaintiffs and flies in the face of representations by the
19 42Id. at 909, quoting Bellevue Associates v. Bellevue, 108 Wn.2d 671, 676, 741 P.2d 20 993 (1987), quoting In Re Schmitz, 44 Wn.2d 429, 433, 268 P.2d 436 (1954). 43Id. 21 44RCW 57.08.010 provides, in relevant part: "A water district may acquire by 22 purchase or condemnation, or both, all property and property rights and all water and water rights, both within and without the district, necessary for its purposes." 23

Plaintiff's Motion for Partial Summary Judgment Page 18

24

Board and past actions by the District to obtain and perfect those necessary 1 easements as demonstrated by numerous public documents, agreements 2 and quit claim deeds in favor of the District. 3 "`In order for a sewer to be susceptible of use to a given parcel of 4 land, there must be access from said land to said sewer without 5 passing 6through the property of other individuals.'"45 Regarding the property 7 one group of appellants, the Towers Court stated: of That property can in no way be connected with the trunk sewer by 8 lateral sewers over and along any public way, for which reason it must be held that the trunk sewer is of no benefit to 9 their lands and therefore that they shall not be assessed at all for the cost of the improvement.46
10

This is in part, the situation faced by the plaintiffs in the case at bar. 11 precisely12 situation faced by plaintiffs in the case at bar. Because there is the no existing access to the water and sewer mains, those improvements are of 13 no use or benefit to the Property. 14 The precise situation faced by the

plaintiffs 15 that by bringing the mains only to the boundaries of the four tax is lots, and16 not providing the actual connections to the implied 230 tax lots which would utilized the 230 waterhookups are in no way connected by 17 lateral sewers notwithstanding that the District computed the value of the 18 water component of the special assessment and the delivery system 19 component reperssented by the trunks, mains and lateral lines and assessed 20
21 45Towers v. Tacoma, 151 Wash. 577, 583, 276 Pac. 888 (1929), quoting Monk v. Ballard, 4222 Wash. 35, 84 Pac. 397. (Emphasis added.) 46Id. (Emphasis added.) 23

Plaintiff's Motion for Partial Summary Judgment Page 19

24

all properties uniformly as if the special benefits were uniform which they 1 were not. (Doug, I add this as our subsent case at trial is based on the failure 2 to deliver us the laterals along a over the public ways which shall serve upto 3 230 tax 4 lots once the subdivision is approved and for which the District instisted 5 that would be one day developed on that land. All 6 property within the boundaries of the District were assessed $710 for each 7 water hook-up and $1,275 for each sewer hook-up. Unlike other properties within the District, however, the Property does not front the 8 improvements, nor does it have access to them. Accordingly, the Property 9 has received no "special benefit" from the improvements. This is contrary to 10 the District's declarations in Resolution Nos. 82-3 (ULID No. 4) and 87-17 11 (ULID No. 7), that the assessments conferred a "special benefit" to the 12 Property.13 "[T]he words `special benefits' are used in contrast to general benefits 14 which would not support assessments for special benefits."47 The installation 15 of a water pipeline is, of course, a special benefit to land which fronts 16 upon the improvement. The same is true of a sewer line, whereas a trunk 17 sewer would be of benefit to a greater area which, by laterals, may avail 18 itself of the trunk line."48 In the latter instance, the benefit would be general, 19 not special. Doug, this is also case law for the position that I have been 20 advocating and for the question of just what did we purchase for the $710 21
47Hargreaves v. Mukilteo Water Dist., 37 Wn.2d 522, 528, 224 P.2d 1061 (1950). 22 48Id. (Emphasis added.) 23

Plaintiff's Motion for Partial Summary Judgment Page 20

24

per water hookup? On the one hand, it cannot be (as it was and is) the 1 delivery 2 water through a water hookup and sewer service to a specific of property 3 which could then be used by the property (a special benefit) and for the same price a hookup is that provided by by laterals, may avail 4 itself of 5 the trunk line." 49 In the latter instance, the benefit would be general,6not special. "It 7is axiomatic that property not specially benefited by a local improvement may not be assessed." 50 8 It is the basic principle and the very life of the doctrine of special 9 assessments that there can be no special assessment to pay for a thing which has conferred no special benefit upon the property 10 assessed. To assess property for a thing which do not benefit it would be pro tanto the taking of private property for a public use 11 without compensation, hence unconstitutional.51 Whether property has been specially benefited by an improvement (as distinguished from a general benefit to the entire district) is ordinarily a question of fact.52 15 `[W]hen it is plainly obvious from the physical condition of the property involved, its locality, environment, and the 16 characteristic of the improvement that an assessment ought not to be laid upon certain property for the purpose, and that to do so 17 would amount to an exaction from the property owner of a contribution he should not be obliged to make as a special 18 assessment, the courts will interfere to prevent a consummation
19 49Id. (Emphasis added.) 20 50In re Jones, 52 Wn.2d 143, 145, 324 P.2d 259 (1958). 21 51Id. at 145-46, quoting In re Shilshole Ave., 85 Wash. 522, 537, 148 Pac. 781 (1915). 22 52Id. at 146. 23 14 13 12

Plaintiff's Motion for Partial Summary Judgment Page 21

24

of the injustice.' 53
1

"`The amount of the special benefits attaching to the property, by 2 reason of a local improvement, is the difference between the fair market 3 value of 4 the property immediately after the special benefits have attached, and the 5 fair market value of the property before the benefits have attached.'" 54 In the case at bar, because the Property is separated from the 6 District's 7 water and sewer mains by privately held property, with no existing right of access, no special benefits have attached to the Property; therefore, 8 until the 9 right to connect to the improvements has been perfected, there can be no increase in the fair market value of the Property because of the 10 improvements. 11 Indeed, in the absence of a legal right to access the

improvements, any attempt to establish an increase in market value based 12 upon the13 improvements would be based upon speculation. The law is clear, however,14 that opinions regarding fair market value cannot be based upon speculation.55 15
16 17 53Id. at 146, quoting In re West Marginal Way, 112 Wash. 418, 421, 192 Pac. 961 (1920) (italics original). 18 54In re Local Improvement, 52 Wn.2d 330, 333, 324 P.2d 1078 (1958), quoting In re 19 Schmitz, 44 Wn.2d 429, 268 P.2d 436 (1954). 20 55Bellevue Plaza v. Bellevue, 121 Wn.2d 397, 411-13, 851 P.2d 662 (1993) (fair market value cannot include a speculative value, or be based upon speculative 21 assumptions). See, also, id. at 415 (the method used to determine the assessment on property specially benefited by an improvement must ultimately relate to the benefits 22 actually received by the property, not merely the distribution of costs among properties being assessed). 23

Plaintiff's Motion for Partial Summary Judgment Page 22

24

VII. CONCLUSION

The District is contractually obligated to deliver to the Property the 2 "special 3 benefits" it represented the Property would receive from the formation of ULID Nos. 4 and 7. Specifically, the District is legally bound to 4 deliver, at the very minimum to the boundary line of the four separate tax 5 parcels comprising the Property, water and sewer service as represented. 6 Accordingly, partial summary judgment should be granted in favor of 7 plaintiffs 8 establishing the following: (1) 9 the Property is entitled to receive 230.07 ERU's (equivalent

residential units) of water service and 38.37 ERU's of sewer service; 10 (2) 11 for purposes of ULID No. 7, an ERU is defined as the equivalent of 400 gallons per day (gpd) of water; and 12 (3) 13 the District is obligated to, and shall, extend the water and sewer trunk lines to at least the boundary of each of the four separate tax 14 parcels comprising the Property, with said lines having the capacity to 15 deliver at least 400 gallons per day (gpd) of water. 16 DATED this day of , 2005.
17 18 19 20

Respectfully submitted, CONE GILREATH LAW OFFICES By:

#24854 21
22 23

Douglas W. Nicholson, WSBA Attorney for Plaintiffs

Plaintiff's Motion for Partial Summary Judgment Page 23

24

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Plaintiff's Motion for Partial Summary Judgment Page 24

24