Skycorp, Ltd., V. King County

• Court: Court of Appeals of Washington
• Decided: February 13, 2024
• Docket: 57452-7
• Status: Published

Opinion

Filed Washington State Court of Appeals Division Two

February 13, 2024

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II SKYCORP LTD, No. 57452-7-II

Appellant,

v.

KING COUNTY, a municipal subdivision of PUBLISHED OPINION the State of Washington,

Respondent.

GLASGOW, C.J.—The King County Code (KCC) 10.30.020 requires that anyone who

generates, handles, or collects mixed or nonrecyclable construction and demolition waste within

King County must dispose of such waste in county designated facilities. King County (the County)

has designated facilities in King, Pierce, and Snohomish counties for this purpose. In violation of

the code, SkyCorp disposed of mixed construction and demolition waste that was generated and

then collected within King County at a licensed, but not designated, facility in Yakima County. In

response to this violation of KCC 10.30.020, the County issued a citation and imposed a one

hundred dollar fine.

SkyCorp does not dispute that it violated the code. Rather, SkyCorp sued the County

arguing that KCC 10.30.020, as applied in this case, is an unconstitutional exercise of the County’s

police power beyond its jurisdictional borders. SkyCorp also asserts that the code is an

unconstitutional restriction on SkyCorp’s purported fundamental right to freely dispose of their No. 57452-7-II

property under the privileges and immunities clause of the Washington Constitution. The superior

court granted summary judgment in favor of the County and dismissed the case. SkyCorp appeals.

On appeal, SkyCorp argues that the County’s application of KCC 10.30.020 is a violation

of two provisions of the Washington Constitution: article XI, section 11, addressing local

governments’ police power to impose local sanitary regulations, and article I, section 12, the

privileges and immunities clause. Furthermore, SkyCorp argues that the trial court improperly

admitted into the record, and then relied on, a declaration by the County’s construction and

demolition program manager in reaching its summary judgment decision.

First, we affirm the trial court’s decision to grant summary judgment to the County as to

SkyCorp’s article XI, section 11 claim. The code is local in nature because it regulates the disposal

of waste generated and collected within King County. The code is not contrary to state statutes,

and the code is a reasonable exercise of the County’s police power to regulate sanitation—a power

expressly granted to local governments in the Washington Constitution. Thus, the County’s

enforcement action against SkyCorp did not violate article XI, section 11 in this case.

Second, we affirm the trial court’s decision to grant summary judgment to the County in

regard to SkyCorp’s privileges and immunities claim. KCC 10.30.020, as applied to SkyCorp, does

not violate the privileges and immunities clause of the Washington Constitution because SkyCorp

does not possess a fundamental right to dispose of waste as it desires without county regulation.

Third, the trial court did not abuse its discretion when it denied SkyCorp’s oral motion to

strike the county program manager’s declaration. Moreover, any error was harmless because we

need not rely on the declaration to resolve this case.

2 No. 57452-7-II

FACTS

I. FACTUAL BACKGROUND

King County implemented a Comprehensive Solid Waste Management Plan through Title

10 of the King County Code. As part of this plan, the County sought to ensure the proper disposal

of nonrecyclable construction and demolition waste, to increase the amount of construction and

demolition waste that is recycled, to conserve energy and natural resources, to protect the

environment, and to preserve space at existing landfills. See KCC 10.08.080; KCC 10.30.010;

KCC 10.14.020. To achieve these objectives, the County adopted a solid waste disposal code that

regulates “all solid waste either generated, collected[,] or disposed, in unincorporated King

County.” KCC 10.08.020(A). The County’s code makes it unlawful to deliver mixed and

nonrecyclable construction and demolition waste to non-designated facilities. KCC 10.08.020(B)–

(D).

The County’s Comprehensive Solid Waste Management Plan describes a process for

designating facilities to receive construction and demolition waste generated or collected in King

County. DEP’T OF NAT. RES. & PARKS, KING COUNTY, 2019 COMPREHENSIVE SOLID WASTE

MANAGEMENT PLAN 4-36 to 4-37 (Nov. 2019) (CSWMP).1 The implementing code requires that

“[a]ll generators, handlers and collectors of mixed [construction and demolition] waste or

nonrecyclable [construction and demolition] waste generated within the county’s jurisdiction shall

deliver, or ensure delivery to, a designated [construction and demolition waste] receiving facility”

specified by the County. KCC 10.30.020(A)(1). These requirements apply only to mixed and

1 https://your.kingcounty.gov/dnrp/library/solid-waste/about/planning/2019-comp-plan.pdf [https://perma.cc/482A-W89R] 3 No. 57452-7-II

nonrecyclable construction and demolition waste whereas recyclable construction and demolition

materials may be disposed of at any recycling facility. KCC 10.30.020(C).

The County has designated eight disposal sites that are within its territorial borders, as well

as six facilities in adjacent Snohomish County and Pierce County. CSWMP, supra, at 4-36 to 4-

37 (listing designated disposal facilities as of July, 2018). The County argues that the designated

facilities are specifically designed to handle mixed and nonrecyclable construction and demolition

waste.

SkyCorp does not dispute that it collected construction and demolition waste from sites in

King County and disposed of the waste at a non-designated facility in Yakima County in violation

of KCC 10.30.020. As a result, the County issued SkyCorp a citation and fine in the amount of

one hundred dollars.

II. PROCEDURAL HISTORY

In response to this citation, SkyCorp sued the County in federal district court, asserting

both federal and state law claims. SkyCorp asserted that the County’s solid waste disposal code

violated the commerce clause and due process clause of the United States Constitution as applied

in this case. The U.S. District Court for the Western District of Washington dismissed the federal

claims with prejudice. The Ninth Circuit affirmed. SkyCorp, Ltd. v. King County, 859 F. App’x

780 (9th Cir. 2021).

The U.S. District Court dismissed SkyCorp’s state law claims without prejudice and

SkyCorp subsequently sued the County in superior court. SkyCorp argued that the County’s

citation is an unconstitutional application of King County’s police power under article XI, section

11 of the Washington Constitution, which expressly grants municipal governments the police

power to regulate sanitation so long as the regulations are local, reasonable, and do not conflict

4 No. 57452-7-II

with state law. SkyCorp also argued that KCC 10.30.020 violates article I, section 12, the privileges

and immunities clause of the Washington Constitution, by “den[ying] SkyCorp the privilege of

disposing of its property at any location of its choice.” Clerk’s Papers (CP) at 7. In making this

claim, SkyCorp argued that it has a constitutionally protected property interest in the construction

and demolition waste that it is disposing of.

The County presented several reasons justifying KCC 10.30.020 and its application to

SkyCorp’s conduct. The County asserted that the code maximizes the amount of construction and

demolition waste that is recycled and ensures the safe disposal of waste that is nonrecyclable. In

doing so, the County argued, the code “preserves landfill capacity, whether it’s the landfills in

King County or the regional landfills themselves. It creates jobs. It saves energy by reducing the

amount of raw materials that are needed to create new products.” Verbatim Rep. of Proc. (VRP)

at 10. Furthermore, the County asserted that the code “generates revenue for monitoring and

enforcement” and “protects King County and King County residents against hazardous waste.” Id.

Benefits to King County and its residents are not only realized when in-county facilities are

designated to receive King County’s construction and demolition waste. Rather, the County argued

that revenue generated from any designated facility goes directly into funding the County’s solid

waste disposal plan and will ensure that construction and demolition waste generated within King

County is disposed of in compliance with the County’s strict environmental standards.

During the hearing on the County’s motion for summary judgment, SkyCorp’s counsel

raised an oral motion to strike the declaration of the County’s construction and demolition

manager. The court declined to strike the declaration from the record, instead promising to “take

[the oral motion to strike] into consideration in terms of weight given.” VRP at 14. The superior

court granted the County’s motion for summary judgment. The summary judgment order lists the

5 No. 57452-7-II

declaration of the County’s construction and demolition manager as one of the documents that the

court considered. SkyCorp appeals.

ANALYSIS

I. STANDARD OF REVIEW

We review a trial court’s decision to grant summary judgment de novo. Wolf v. State, 2

Wn.3d 93, 102, 534 P.3d 822 (2023). Summary judgment is appropriate where there are no genuine

issues of material fact and the moving party is entitled to judgment as a matter of law. Id.; CR

56(c). We engage in the same inquiry as the trial court, treating all facts and reasonable inferences

in the light most favorable to the nonmoving party. Mason v. Mason, 19 Wn. App. 2d 803, 819,

497 P.3d 431 (2021). Summary judgment is appropriate when the plaintiff has failed to make a

showing sufficient to establish the existence of an element essential to that party’s case. Young v.

Key Pharm., Inc., 112 Wn.2d 216, 225 n.1, 770 P.2d 182 (1989).

The constitutionality of an ordinance is also a question of law that we review de novo. City

of Spokane v. Neff, 152 Wn.2d 85, 88, 93 P.3d 158 (2004). We interpret ordinances using the same

rules of construction we employ for statutes. City of Spokane v. Douglass, 115 Wn.2d 171, 177,

795 P.2d 693 (1990). We presume an ordinance is constitutional, and the party challenging it must

prove that “the ordinance is unconstitutional beyond a reasonable doubt.” Id.

II. SKYCORP’S CHALLENGE TO KCC 10.30.020 UNDER ARTICLE XI, SECTION 11

A. Municipal Regulation of Solid Waste

1. Solid waste regulation under the Washington Constitution and Washington statutes

Article XI, section 11 of the Washington Constitution provides that “[a]ny 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.” (Emphasis added.) This is a direct grant of

6 No. 57452-7-II

police power to counties, and within a county’s jurisdiction, this power is as extensive as the

legislature’s police power. Petstel, Inc. v. King County, 77 Wn.2d 144, 159, 459 P.2d 937 (1969).

To that end, an ordinance violates article XI, section 11 only if (1) the subject matter of the

ordinance is not local, (2) the ordinance directly and irreconcilably conflicts with state law, or (3)

the ordinance is an unreasonable exercise of the County’s police power. Weden v. San Juan

County, 135 Wn.2d 678, 692, 958 P.2d 273 (1998), abrogated on other grounds by Yim v. City of

Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019). Determinations of whether an ordinance is local,

conflicts with state law, or is a reasonable exercise of municipal authority under article XI, section

11, are purely questions of law subject to de novo review. Id. at 693

In addition to the grant of power to cities and counties under article XI, section 11, the

legislature has mandated that all counties regulate solid waste, declaring that “[i]t is the

responsibility of county and city governments to assume primary responsibility for solid waste

management and to develop and implement aggressive and effective waste reduction and source

separation strategies.” RCW 70A.205.005(6)(c). The legislature has also recognized counties have

broad authority to regulate the disposal of solid waste, specifically:

The legislative authority of a county may by ordinance provide for the establishment of a system or systems of solid waste handling for all unincorporated areas of the county or for portions thereof. A county may designate a disposal site or sites for all solid waste collected in the unincorporated areas pursuant to the provisions of a comprehensive solid waste plan adopted pursuant to chapter 70A.205 RCW. However[,] for any solid waste collected by a private hauler operating under a certificate granted by the Washington utilities and transportation commission under the provisions of chapter 81.77 RCW and which certificate is for collection in a geographic area lying in more than one county, such designation of disposal sites shall be pursuant to an interlocal agreement between the involved counties.

RCW 36.58.040(1) (emphasis added).

7 No. 57452-7-II

The County derives its authority to designate disposal sites for mixed and nonrecyclable

construction and demolition waste generated in the unincorporated areas of King County from

these provisions of state law.

In Rabanco Ltd. v. King County, Division One explained that “[t]he first part of RCW

36.58.040 grants King County authority to designate a final disposal site in King County for waste

collected in unincorporated King County.” 125 Wn. App. 794, 803, 106 P.3d 802 (2005). The

court in Rabanco also concluded that “the statute prohibits . . . collecting waste in one county and

taking it to another county without an agreement between those counties.” Id. at 806. The statute

“was intended to preserve a county’s control over disposal of waste collected within the county to

protect a county’s substantial investment in its solid waste management system.” Id.

The Rabanco court also examined the legislative history of RCW 36.58.040. During the

Senate floor debate, prior to the passage of the statute, the bill’s sponsor described its impetus:

“At present when you have a private collection franchise if you want to pick up the garbage in the unincorporated part of the county and you want to truck it down to . . . Cowlitz County and dump it there, you can do so. This bill would prohibit that. If a private collection group wants to take its garbage to another county[,] then it would be up to an inter-local cooperation agreement between the two counties to work this out so that it is very clear as to who is receiving the ultimate garbage disposal.

“This also assures King County or any county that it is going to continue to have in the future quite a garbage disposal business to justify that huge capital investment.”

Rabanco, 125 Wn. App. at 805. (first alteration in original) (quoting 3 SENATE JOURNAL, 44th

Leg., 2d Ex. Sess., at 514 (Wash. 1975-76)).

Thus, the legislature intended that the authorizing statute would provide counties with the

authority to prevent solid waste collected within its borders from being transported to another

8 No. 57452-7-II

county absent an inter-local cooperation agreement or a designation by the originating county. Id.

at 806. The Rabanco court did not address article XI, section 11, however.

Finally, chapter 70A.205 RCW established statewide restrictions on solid waste disposal

and required permits to operate a disposal facility. RCW 70A.205.195(1) provides that “it is

unlawful for any person to dump or deposit or permit the dumping or depositing of any solid waste

onto or under the surface of the ground or into the waters of this state.” The statute provides an

exception for dumping “at a solid waste disposal site for which there is a valid permit, after the

adoption of regulations or ordinances by any county, city, or jurisdictional board of health

providing for the issuance of permits as provided in RCW 70A.205.100.” Id.

RCW 70A.205.100 governs permitting by requiring each county to enact “ordinances

governing solid waste handling implementing the comprehensive solid waste management plan

covering storage, collection, transportation, treatment, utilization, processing and final disposal

including but not limited to the issuance of permits and the establishment of minimum levels and

types of service for any aspect of solid waste handling.” The legislature expressly required that

these codes “assure that solid waste storage and disposal facilities are located, maintained, and

operated in a manner so as properly to protect the public health, prevent air and water pollution,

are consistent with the priorities established in RCW 70A.205.005, and avoid the creation of

nuisances.” RCW 70A.205.100. The statute permits counties to implement regulations or codes

that are “more stringent than the minimum functional standards adopted by the department.” Id.

2. King County’s solid waste disposal code

Under the authority of state law described above and to comply with the statutory mandate

to control the flow of solid waste, the County enacted KCC 10.30.020. The code provides that

“[a]ll generators, handlers and collectors of mixed [construction and demolition] waste or

9 No. 57452-7-II

nonrecyclable [construction and demolition] waste generated within the county’s jurisdiction shall

deliver, or ensure delivery to, a designated [construction and demolition waste] receiving facility.”

KCC 10.30.020(A)(1). To enforce this requirement, the County also provided that “[i]t is unlawful

for any person to dispose of county solid waste except at solid waste facilities and in a manner

authorized under this title.” KCC 10.08.020(B).

The County has designated eight disposal sites that are within its territorial borders, as well

as six facilities in adjacent Snohomish and Pierce Counties. CSWMP, supra, at 4-36 to 4-37.

B. SkyCorp’s Article XI, Section 11 Claim

Under article XI, section 11, SkyCorp challenges the County’s application of KCC

10.30.020 to SkyCorp’s disposal of mixed and nonrecyclable construction and demolition waste

at a non-designated facility in Yakima. SkyCorp argues that to be valid under article XI, section

11, a code and its enforcement must be local, but that the County’s citation constitutes an

extraterritorial application of the County’s police power because the County is regulating the

disposal of solid waste beyond its borders. SkyCorp argues that KCC 10.30.020 conflicts with

RCW 70A.205.195, which authorizes entities like SkyCorp to dispose of solid waste at any waste

disposal site that has a valid permit. Finally, SkyCorp argues that the application of KCC 10.30.020

is not a reasonable exercise of municipal police power under article XI, section 11 because the

code does not promote the health, safety, peace, education, or welfare of the people of King

County.

The County responds that KCC 10.30.020 only regulates the flow of solid waste that

originates within its borders, and thus, the code is regulating local subject matter, even if it has

some incidental extraterritorial reach. The County further argues that RCW 70A.205.195 does not

create the affirmative right that SkyCorp asserts to dispose of this waste without local interference,

10 No. 57452-7-II

and thus, there is no conflict with state law. Finally, the County argues that SkyCorp has failed to

demonstrate that KCC 10.30.020 is a “‘clearly unreasonable, arbitrary or capricious’” exercise of

King County’s police power. Br. of Resp’t at 36 (quoting Weden, 135 Wn.2d at 700). We agree

with the County.

1. As applied challenge and RCW 36.58.040(1)

As an initial matter, SkyCorp characterizes its challenge to KCC 10.30.020 as a narrow, as

applied challenge to King County’s application of the code to prohibit SkyCorp’s disposal of

construction and demolition waste at a non-designated facility outside of King County’s borders.

Nevertheless, if successful, SkyCorp’s proposed analysis would undermine the constitutionality of

the statutory authority granted in RCW 36.58.040(1).

The legislature has granted counties broad authority to “designate a disposal site or sites

for all solid waste collected in the unincorporated areas pursuant to the provisions of a

comprehensive solid waste plan adopted pursuant to chapter 70A.205 RCW.” RCW 36.58.040(1).

In addition, RCW 36.58.040(1) expressly contemplates that counties will designate some disposal

sites that are outside of county borders, requiring that these approvals be supported by an interlocal

agreement. Thus, the legislature restricted out-of-county disposal by making an interlocal

agreement a prerequisite to designation of an out-of-county disposal site. The legislature put no

other restrictions on county designations of approved disposal sites. The legislature certainly did

not say in RCW 36.58.040(1) that the counties are required to designate all state-licensed disposal

facilities.

SkyCorp essentially argues that the County cannot constitutionally exercise the broad

authority granted in RCW 36.58.040(1) to choose which facilities will be authorized to receive the

County’s construction and demolition waste. To the extent SkyCorp asks us to adopt an analysis

11 No. 57452-7-II

that renders RCW 36.58.040(1) unconstitutional, we must keep in mind the strong presumption of

constitutionality for legislative enactments. State v. Batson, 196 Wn.2d 670, 674, 478 P.3d 75

(2020). As explained below, we decline to adopt SkyCorp’s reasoning and call the constitutionality

of RCW 36.58.040(1) into question.

2. Local nature of the code

SkyCorp contends the “critical legal question” is “whether King County can regulate these

out of jurisdiction transactions simply because the waste was at one time within King County

borders.” Appellant’s Opening Br. at 16. In this sense, SkyCorp asserts that King County

“regulate[s] solid waste disposal in other counties.” Id. at 18. SkyCorp argues that King County’s

application of its code “does not merely have incidental effects” outside the County, but it

“completely prohibits a transaction that occurs entirely outside of King County.” Id. at 19. Thus,

SkyCorp asserts that KCC 10.30.020 is nonlocal.

The County responds by explaining that the code only governs “solid waste generated

within the County’s local jurisdiction.” Br. of Resp’t at 24. The County argues that the primary

purpose of the code is to regulate the flow of waste that is generated within King County and is

not to exert regulatory authority over extraterritorial disposal sites. Rather, the County is simply

exercising its legislatively delegated authority to control the flow of solid waste that is generated

within their borders. Thus, prohibiting the disposal of waste at some out-of-county locations is

merely an incidental effect stemming from the primary focus of the code—regulating the flow of

solid waste generated within King County. We agree with the County.

KCC 10.30.020 only requires that construction and demolition waste generated within

King County be delivered to a county-designated disposal site. When an entity like SkyCorp

collects construction and demolition waste that originates inside King County, the entity must then

12 No. 57452-7-II

determine where to dispose of that waste. The County’s code requires the entity to take the waste

from its point of origin in King County to a designated disposal site, all of which are located in

King County or in adjacent counties. Thus, the code necessarily prohibits an entity from disposing

of the waste at any other place and in any other manner, including at non-designated facilities in

more distant counties. The fact that this regulation has the effect of prohibiting disposal at non-

designated sites in more distant counties does not render it nonlocal. The core purpose and effect

of the regulation are to ensure the efficient and proper disposal of waste that originated in King

County from the moment it is generated or collected within the county.

In regulating the proper disposal of construction and demolition waste, the County’s stated

purposes were to ensure the proper disposal of nonrecyclable construction and demolition waste,

increase the amount of construction and demolition waste that is recycled, conserve energy and

natural resources, protect the environment, and preserve space at existing landfills. See KCC

10.08.080; KCC 10.30.010; KCC 10.14.020. The County has explained that KCC 10.30.020

maximizes the amount of construction and demolition waste that is recycled and ensures the safe

disposal of waste that is nonrecyclable by enabling nonrecyclable waste to be separated from

recyclable waste in specially designated facilities. The code “preserves landfill capacity, whether

it’s the landfills in King County or the regional landfills themselves.” VRP at 10. KCC 10.30.020

saves energy and slows climate change by reducing the amount of raw materials that are needed

to create new products. It also necessarily prevents needless long-distance hauling of the waste.

Significantly, there is economic benefit to the County because the code’s requirement

creates jobs both in King County and in adjacent counties where King County residents can work.

In addition, the Comprehensive Solid Waste Management Plan requires designated facilities to

pay fees to the County, so the code “generates revenue for monitoring and enforcement,” and

13 No. 57452-7-II

“protects King County and King County residents against hazardous waste.” Id. Benefits to King

County and its residents are not only realized when in-county facilities are designated to receive

construction and demolition waste. Rather, the County argues that revenue generated from any

designated facility goes directly into funding King County’s solid waste disposal plan and will

ensure that construction and demolition waste generated within King County continues to be

disposed of in compliance with the County’s environmental standards.2

SkyCorp rightly identifies Brown v. City of Cle Elum, as a relevant case, but it misapplies

Brown to the facts here. Brown involved a City of Cle Elum code through which the City sought

to assume jurisdiction over all water that fed into its water supply. The code prohibited and

punished activities including, but not limited to, swimming, fishing, and boating in Cle Elum Lake,

which was situated entirely outside of the city. 143 Wash. 606, 609, 255 P. 961, vacated on reh’g,

145 Wash. 588, 261 P. 112 (1927). In the context of these facts, the Washington Supreme Court

stated that the grant of police power to various municipalities in article XI, section 11 “is strictly

limited to the exercise of that power within the limits of such municipalities.” Brown, 145 Wash.

at 589. The court held that Cle Elum’s code was an unconstitutional extraterritorial exercise of its

police power under article XI, section 11. Id. at 590-91.

2 At oral argument, SkyCorp stated that a code that required the disposal of construction and demolition waste only at sites entirely within King County would likely not violate article XI, section 11 because such a regulation would be entirely local. Wash. Court of Appeals oral arg., SkyCorp Ltd. v. King County, No. 57452-7-II (Sept. 11, 2023) at 30 min., 14 sec., to 31 min., 20 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-2-court-of-appeals-2023091062/. This concession undermines SkyCorp’s argument, because a code that required disposal only within King County’s borders would just as effectively prohibit disposal at facilities in Yakima County, as the one King County adopted. If SkyCorp’s identified fault in the County’s code is its prohibition against disposal in a remote county, and that is what makes the code nonlocal, then the result should not depend on whether the County allows this type of waste to be disposed of in some facilities in adjacent counties.

14 No. 57452-7-II

In more modern cases, the Washington Supreme Court has recognized that codes

exercising a county’s police power can have effects outside of the county without invalidating the

code. In Weden, the County sought to prohibit the use of private watercraft on all marine waters

and one lake within the county with limited exceptions. 135 Wn.2d at 684-85. The court held that

the fact nonresidents traveling to San Juan County would be impacted by this prohibition and had

to comply, did not “invalidate the law or make it ‘not local’ for purposes of the police power.” Id.

at 706.“[M]unicipal legislation will not be found to violate the police power if its effect outside

the county is only incidental.” Id. at 705. The Weden court thus further developed the analysis,

making it clear that our focus in evaluating whether a code is local must be directed at whether

“the subject matter” is local, not whether the effects are confined within the county’s borders. Id.

at 692.

In Petstel, the Washington Supreme Court addressed whether the County’s imposition of

maximum rates to be charged by employment agencies operating within the county had a sufficient

impact outside of the county to render the code unconstitutional. 77 Wn.2d at 159. The court

concluded that “[w]hile it is true that county regulation of [wage] rates may result in dissimilar

market conditions throughout the state, the same effect could also result from various county

licensing and standards regulations . . . [and] is not sufficient to render these regulations nonlocal

in character.” Id.

Finally, in Wilson, the Washington Supreme Court considered the authority of the City of

Mountlake Terrace to fluoridate its water given that some of the fluoridated water would flow to

residents living outside of the city’s limits. Wilson v. City of Mountlake Terrace, 69 Wn.2d 148,

150-51, 417 P.2d 632 (1966). The challengers of the code relied heavily on Brown for the

proposition that “a city cannot exercise its police power outside its boundaries.” Id. at 152. The

15 No. 57452-7-II

court rejected this argument, finding that while the “appellant is correct in his abstract statement

of the law,” the City was not in fact proposing to exercise its police power outside the city limits.

Id. at 152-53. Rather, the City was exercising its police power within city limits for the purpose of

“furnish[ing] fluoridated water to its own inhabitants,” and the subsequent flow of fluoridated

water to the non-resident appellant was “the incidental, although inevitable, result of the city’s

exercise of its police power in this respect.” Id. at 153. The literal downstream effect outside of

the city was not enough to render the code nonlocal. Importantly, the court in Wilson focused its

analysis on the purpose of the code to determine whether its extraterritorial impact was merely a

constitutional incidental effect.

Here, KCC 10.30.020 controls the flow of all mixed and nonrecyclable construction and

demolition waste that is generated or collected within unincorporated King County. An important

component of a code is designating where such waste may be disposed. To that end, the code

makes it “unlawful for any person to deliver any county solid waste to a place other than a disposal

facility designated by the county to receive the particular waste.” KCC 10.08.020(C).

The County’s authority to govern local sanitation arises from the plain language of article

XI, section 11. The County draws its specific authority for this code from RCW 36.58.040, which

provides clear authority to counties for the purpose of designating disposal sites for all solid waste

collected in their unincorporated areas. As the Rabanco court explained, this statute’s legislative

history demonstrates that the legislature intended RCW 36.58.040 to ensure counties are able to

control, by interlocal agreement, the disposal of solid waste generated within their borders—

including when and to where that waste is transported out of the county. Rabanco, 125 Wn. App.

at 806.

16 No. 57452-7-II

Incidental effects that stem from a regulation that directly regulates activities primarily

within the borders of the county do not violate article XI, section 11. To varying degrees, Weden,

Petstel, and Wilson are examples of incidental effects stemming from a locally focused exercise

of police power. Conversely, Brown is a clear example of an exercise of police power with a

primarily extraterritorial focus.

We acknowledge that this case falls somewhere in between Brown’s attempt to regulate

activity entirely outside of the municipality’s borders and Weden’s and Petstel’s regulation of

activities entirely within the municipalities’ borders. This case is more like Wilson, where a

regulatory scheme directly addresses activity within the municipality’s boarders (here, regulation

of where construction and demolition material must go after it is generated or collected within

King County) with downstream effects outside of the county.

The primary purpose of KCC 10.30.020 is to regulate the flow of mixed and nonrecyclable

construction and demolition waste that is generated within King County. The code achieves this

purpose by designating lawful waste disposal sites. The County has designated several disposal

sites—with some located within King County and some located in adjacent Snohomish and Pierce

Counties. CSWMP, supra, at 4-36 to 4-37. Thus, the subject matter of the code is mixed and

nonrecyclable construction and demolition waste that is generated within King County and is not,

as SkyCorp argues, the prohibition of a transaction occurring entirely outside of King County.

The Wilson court recognized that Mountlake Terrace was acting within its constitutional

limitations under article XI, section 11 because the primary focus of its exercise of police power

was the fluoridation of water treated within city limits, despite the fact that the water inevitably

flowed to out-of-county residents. Similarly, the County’s prohibition on disposal at a non-

designated, out-of-county facility is an inevitable, but incidental product of the County’s

17 No. 57452-7-II

application of its police power to control the flow of mixed and nonrecyclable construction and

demolition waste generated within King County. To the extent that this code has the downstream

effect of prohibiting disposal at non-designated facilities outside of King County, the scope of that

incidental effect is minimal when compared to the code’s primary purpose. Mixed and

nonrecyclable construction and demolition waste that SkyCorp collects inside King County must

be disposed of at a King County approved facility. The County does not seek to control the flow

of waste that is generated or collected elsewhere and is not regulating or permitting the facility in

Yakima County. Rather, the County is designating permissible disposal locations for mixed and

nonrecyclable construction and demolition waste generated within the county as part of its

constitutionally granted power to govern local sanitation and its legislatively granted specific

control over the flow of solid waste that is generated within its borders.

SkyCorp is correct that “[b]oundaries mean something.” Appellant’s Opening Br. at 60.

Here, the County does not regulate any facility beyond its borders absent an interlocal agreement,

nor does it control the flow of waste that is generated outside of county boundaries. On balance,

we conclude that out-of-county downstream effects are incidental to the primary regulatory

effect—managing the flow of waste by designating disposal sites for mixed and nonrecyclable

construction and demolition waste that is generated within King County. SkyCorp failed to meet

its heavy burden of overcoming the presumption of constitutionality by showing the King County

code is nonlocal beyond a reasonable doubt.

3. Conflict with state law

KCC 10.30.020 makes it unlawful to dispose of mixed or nonrecyclable construction and

demolition waste except at county-approved facilities. SkyCorp argues that this code directly and

irreconcilably conflicts with RCW 70A.205.195, which makes it unlawful to dispose of solid waste

18 No. 57452-7-II

except at locally permitted sites. SkyCorp’s argument hinges on us interpreting RCW 70A.205.195

to create an affirmative right—the right to dispose of waste at any facility that is locally permitted,

including the permitted disposal site in Yakima County. SkyCorp points out that “[n]othing in

[RCW 70A.205.195] suggests that King County may prohibit the use of locally licensed disposal

facilities . . . by anyone who happens to have waste that originated in King County.” Appellant’s

Opening Br. at 24. SkyCorp concludes that RCW 70A.205.195 provides that it is legal to deposit

solid waste at a site where there is a valid permit and that KCC 10.30.020, by reducing the number

of lawful disposal sites for mixed and nonrecyclable construction and demolition waste, conflicts

with this grant of permission to dispose of this waste under state law. We disagree.

A local code violates article XI, section 11 if it directly and irreconcilably conflicts with a

state statute. HJS Dev., Inc. v. Pierce County, 148 Wn.2d 451, 482, 61 P.3d 1141 (2003); Heinsma

v. City of Vancouver, 144 Wn.2d 556, 564, 29 P.3d 709 (2001). If the state statute and local code

can be harmonized, there is no conflict for the purposes of article XI, section 11. Heinsma, 144

Wn.2d at 564. A direct and irreconcilable conflict occurs when a code permits what state law

forbids or forbids what state law permits. Lawson v. City of Pasco, 168 Wn.2d 675, 682, 230 P.3d

1038 (2010).

When interpreting a statute, “the court must assume that the Legislature does not engage

in meaningless acts.” JJR Inc. v. City of Seattle, 126 Wn.2d 1, 10, 891 P.2d 720 (1995).

Furthermore, simply because an activity can be licensed under state law does not mean that local

governments are required to allow such activity. Emerald Enters., LLC v. Clark County, 2 Wn.

App. 2d 794, 805, 413 P.3d 92 (2018) (concluding that just because Washington’s Uniform

Controlled Substances Act, chapter 69.50 RCW permitted the licensing of marijuana facilities, it

did not also “grant retailers an affirmative right to sell marijuana”).

19 No. 57452-7-II

Similarly, in Weden, the court analyzed whether a statute that created a title registration

system for boats also entitled registered boat owners to operate their boats anywhere in the state,

thereby preempting San Juan County’s prohibition on personal watercraft in certain marine waters

and one lake. 135 Wn.2d at 694-95. The court held that no unconditional right to operate a boat

was granted by obtaining the registration. Id. at 695. “Statutes often impose preconditions which

do not grant unrestricted permission to participate in an activity.” Id.

Here, RCW 70A.205.195 provides “it is unlawful for any person to dump or deposit or

permit the dumping or depositing of any solid waste onto or under the surface of the ground or

into the waters of this state” except “at a solid waste disposal site for which there is a valid permit”

or as otherwise provided in that section. RCW 70A.205.195(1). Under Emerald Enterprises and

Weden, just because the state permits an activity to be licensed, does not mean such an activity

must be allowed under local law. RCW 70A.205.195 does not create an affirmative right to dispose

of solid waste at any locally licensed facility. As a result, the King County code can be harmonized

with RCW 70A.205.195.

Moreover, RCW 36.58.040 simultaneously authorizes counties to designate disposal sites,

which would be entirely superfluous if all locally permitted disposal sites had to be designated.

To read RCW 70A.205.195 as creating an affirmative right to dispose of waste at any licensed

facility would render the power granted by RCW 36.58.040 meaningless because counties would

have no choice but to designate all locally licensed disposal facilities. We presume the legislature

does not engage in useless or meaningless acts. JJR, 126 Wn.2d at 10.

Finally, KCC 10.30.020 does not impede the ability of Yakima County to regulate and

license its own solid waste facilities. Rather, KCC 10.30.020 comports with the legislature’s stated

20 No. 57452-7-II

purpose when it enacted RCW 36.58.040, which is to provide every county the authority to

designate disposal facilities for solid waste that is generated within its unincorporated areas.

In sum, RCW 70A.205.195 does not create the affirmative right that SkyCorp asserts and

is capable of being harmonized with KCC 10.30.020. SkyCorp has therefore failed to meet its

heavy burden of demonstrating that KCC 10.30.020 unconstitutionally conflicts with state law.

4. Reasonable exercise of police power

SkyCorp argues that KCC 10.30.020 does not promote the health, safety, peace, education,

or welfare of King County residents when it is applied to prohibit SkyCorp’s disposal of mixed

and nonrecyclable construction and demolition waste in Yakima County. SkyCorp concedes that

King County has a reasonable basis for regulating solid waste disposal within its borders, but it

argues that regulating waste disposal once the waste has travelled outside of King County has no

reasonable basis in promoting the health, safety, peace, education, or welfare of King County or

its residents.3 To the extent that the County argues that designating sites for the disposal of solid

waste ensures that the flow of waste complies with strict environmental standards, SkyCorp

responds that the County is exerting “jurisdiction over the entire state” by imposing its own

environmental standards statewide. Appellant’s Opening Br. at 33. We disagree.

3 SkyCorp also cites Daniels Sharpsmart, Inc. v. Smith in support of its claim that King County cannot regulate waste generated within the county that is disposed of elsewhere. 889 F.3d 608, 616 (9th Cir. 2018). While it is true that the Ninth Circuit held that California’s regulation of medical waste disposed outside of California is likely a “per se violation of the Commerce Clause,” id., a commerce clause challenge is not before this court because the facts before us do not involve any interstate or out-of-state activity. Furthermore, the Ninth Circuit already heard and dismissed SkyCorp’s commerce clause claim for lack of standing. SkyCorp Ltd. v. King County, 859 F. App’x. 780 (9th Cir. 2021). While SkyCorp attempts to analogize Daniels to the case at bar, the legal theory on which the Ninth Circuit relied in reaching its decision is fundamentally different and thus the case is not persuasive.

21 No. 57452-7-II

We use a two-part test for determining whether legislation is reasonable for the purposes

of article XI, section 11: (1) The legislation “must promote the health, safety, peace, education, or

welfare” of the people; and (2) the legislation must bear some reasonable relationship to

accomplishing this purpose. Weden, 135 Wn.2d at 700. With regard to the first prong, “‘[t]he

wisdom, necessity and expediency of the law are not for judicial determination,’ and an enactment

may not be struck down as beyond the police power unless it ‘is shown to be clearly unreasonable,

arbitrary or capricious.’” Id. (quoting Homes Unlimited, Inc. v City of Seattle, 90 Wn.2d 154, 159,

579 P.2d 1331 (1978), abrogated on other grounds by Yim v. City of Seattle, 194 Wn.2d 682, 451

P.3d 694 (2019)). With regard to the second prong, a law must be reasonably necessary to achieve

the goal of protecting the public health, safety, morals, or general welfare. Id. at 701. In deciding

whether a code meets the requirements of the second prong, the courts should generally defer to

legislative judgment. See Homes Unlimited, Inc., 90 Wn.2d at 160

The Washington Supreme Court has recognized that “[t]he handling and disposal of solid

waste is a governmental function.” Weyerhaeuser v. Pierce County., 124 Wn.2d 26, 40, 873 P.2d

498 (1994). Title 10 of the King County Code in its entirety is “necessary for the preservation and

protection of public health, welfare, and safety.” KCC 10.04.010. Specifically, the purpose of KCC

10.30 is to ensure:

[T]hat there will be [construction and demolition waste] disposal facilities to serve King County, that in accordance with the comprehensive solid waste management plan, [construction and demolition waste] is recycled to the maximum extent feasible, that the Cedar Hills regional landfill may continue to be dedicated to receiving municipal solid waste (MSW), and that [construction and demolition waste] disposal is subject to King County’s strict environmental controls.

KCC 10.30.010.

The same aspects of KCC 10.30.020 that make it local, also support a conclusion that the

code is a reasonable exercise of the County’s police power. Requiring and enforcing designated

22 No. 57452-7-II

disposal at facilities in King County or in adjacent counties, allows King County to (1) promote

the welfare of its residents by preserving revenue generated from specialized disposal sites and

jobs at those sites while increasing the quantity of material recycled, reducing long term costs by

preserving landfill capacity and decreasing the flow of new materials into King County; (2)

promote the health and safety of its residents by preventing diminished air quality and increased

carbon emissions that would result from hauling construction and demolition waste to distant

counties; and (3) protect the county and its residents by ensuring that waste generated within the

county is disposed of in compliance with strict environmental standards. The County has

sufficiently identified reasonable public health, safety, and welfare impacts that would result from

not being able to properly regulate the flow of mixed and nonrecyclable construction and

demolition waste from start to finish. Designating specialized disposal sites bears a reasonable

relation to the public health, safety, and welfare of King County residents.

In light of the deference we afford local governments when evaluating the wisdom,

necessity, and expediency of local regulations, KCC 10.30.020 is a reasonable exercise of its police

power to promote the health, safety, and welfare of its residents. SkyCorp fails to demonstrate that

this code is unreasonable, arbitrary, or capricious.

Having failed to meet their heavy burden under any of the three prongs, SkyCorp fails to

sufficiently overcome the presumption of constitutionality to demonstrate that KCC 10.30.020 or

the County’s enforcement action violates article XI, section 11. For the foregoing reasons, we

affirm the trial court’s grant of summary judgment as to the article XI, section 11 claim.

23 No. 57452-7-II

III. CHALLENGE TO KCC 10.30.020 UNDER ARTICLE I, SECTION 12 PRIVILEGES & IMMUNITIES

SkyCorp argues that by approving some disposal sites and not others, the County has

engaged in favoritism that “is improper because King County forces SkyCorp to pay King

County’s favored facilities for all [construction and demolition] waste originating in King

County.” Appellant’s Opening Br. at 39. According to SkyCorp, this is a violation of the privileges

and immunities clause because the County grants a privilege to certain favored facilities to

SkyCorp’s financial detriment. We disagree.

The privileges and immunities clause of the Washington Constitution, article I section 12,

provides that “[n]o law shall be passed granting to any citizen, class of citizens, or corporation

other than municipal, privileges or immunities which upon the same terms shall not equally belong

to all citizens, or corporations.” We apply a two-step inquiry to determine whether a regulation

violates this clause: (1) “whether the law in question involves a privilege or immunity” and, if so,

(2) whether the legislative body “had a ‘reasonable ground’ for granting the privilege or

immunity.” Ockletree v. Franciscan Health Sys., 179 Wn.2d 769, 776, 317 P.3d 1009 (2014).

A “privilege” or “immunity” is implicated when a fundamental right of state citizenship is

involved. Id. at 778-79 We need only examine whether a reasonable ground exists for granting a

privilege or immunity if we find that a fundamental right is implicated. Martinez-Cuevas v.

DeRuyter Bros. Dairy, 196 Wn.2d 506, 519, 475 P.3d 164 (2020).

The Washington Supreme Court has recognized only a limited number of rights of state

citizenship under the privileges and immunities clause. Id. at 522. Not every statutory grant or

benefit constitutes a constitutionally protected privilege or immunity. Grant County Fire Prot.

Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 812, 83 P.3d 419 (2004). Generally, rights left

to the discretion of the legislature are not fundamental rights of state citizenship for privileges and

24 No. 57452-7-II

immunities clause purposes. Martinez-Cuevas, 196 Wn.2d at 518-19; Grant County, 150 Wn.2d

at 813 (holding that because “the legislature enjoys plenary power to adjust the boundaries of

municipal corporations,” landowners did not have fundamental rights to seek or prevent

annexation).

In Ventenbergs v. City of Seattle, a waste hauler sued the City for violating the privileges

and immunities clause by granting exclusive contracts to some waste haulers. 163 Wn.2d 92, 100,

178 P.3d 960 (2008). The petitioners argued that the right to hold specific private employment was

a fundamental right of citizenship, id. at 103, and that the City was infringing upon the right to

freely alienate property. Id. at 105. The court disagreed, reasoning in part that the petitioners could

not identify a case establishing a right to freely dispose of solid waste and “[t]o the contrary, ‘[t]he

gathering of garbage and trash is considered to be a matter which public agencies are authorized

to pursue by the best means in their possession to protect the public health.’” Id. at 105-06 (second

alteration in original) (internal quotation mark omitted) (quoting Shaw Disposal, Inc. v City of

Auburn, 15 Wn. App. 65, 68, 546 P.2d 1236 (1976)). Therefore, because the power to regulate

solid waste collection lies entirely with the legislature and local governments, there is no

fundamental right to provide this governmental service. Id. at 103-04.

SkyCorp attempts to distinguish Ventenbergs by arguing that it is not asserting a right to

provide solid waste hauling services, but SkyCorp is instead asserting a right to dispose of property

that it purchases prior to demolition and then turns into waste. This is a distinction without a

difference. Even assuming SkyCorp has a property interest in the waste it hauls to disposal

facilities, the regulation of solid waste disposal is nevertheless a power that lies within the

discretion of the legislature and local governments. “[I]t is the responsibility of county and city

governments to assume primary responsibility for solid waste management and to develop and

25 No. 57452-7-II

implement aggressive and effective waste reduction and source separation strategies.” RCW

70A.205.005(6)(c). “The legislative authority of a county may by ordinance provide for the

establishment of a system or systems of solid waste handling for all unincorporated areas of the

county or for portions thereof.” RCW 36.58.040(1)

Property owners do have a right to own, sell, and dispose of property as SkyCorp asserts,

but they do not have a right to freely dispose of solid waste without restriction. See Ventenbergs,

163 Wn.2d at 101-06. To protect the public health, safety, and welfare of county residents, the

County has express authority to decide where solid waste generated within its borders is disposed.

See, e.g., RCW 36.58.040. The right to dispose of solid waste is not a fundamental right and thus

the code does not implicate the privileges and immunities clause.

IV. CHALLENGED DECLARATION

During the hearing on the County’s motion for summary judgment, counsel for SkyCorp

moved to strike the declaration of the County’s construction and demolition manager. The court

declined to strike the declaration from the record, instead promising to “take [the oral motion to

strike] into consideration in terms of weight given.” VRP at 14.

SkyCorp has not demonstrated that the trial court abused its discretion by evaluating the

weight to be given the declaration in light of SkyCorp’s arguments. See Engstrom v. Goodman,

166 Wn. App. 905, 909, 271 P.3d 959 (2012). Moreover, any error was harmless because as

discussed above, the County’s enactment of KCC 10.30.020 was local in nature, reasonable in

application, and otherwise consistent with the Washington Constitution, regardless of the content

of the challenged declaration, which specifically discussed the County’s risk of liability under

federal environmental law. We reach our conclusion regarding the constitutionality of KCC

10.30.020 without any reliance on the contested declaration.

26 No. 57452-7-II

CONCLUSION

We affirm the trial court’s grant of summary judgment to the County and the dismissal of

SkyCorp’s claims.

Glasgow, C.J. I concur:

Che, J.

27 No. 57452-7-II

VELJACIC, J. (dissent) — I write separately from the majority because King County’s

extraterritorial enforcement of its ordinances in Yakima County violates article XI, section 11 of

the Washington Constitution.

SkyCorp Ldt. is a Washington-based business that contracts to remove or demolish

buildings in King County and elsewhere. SkyCorp removed mixed and nonrecyclable construction

and demolition (C&D) waste, pursuant to a contract with the Renton School District, from a site

within the borders of King County. SkyCorp then delivered this waste to a disposal facility in

Yakima County. This facility is lawfully permitted to receive such waste, but is not approved by

King County under King County Code (KCC) 10.08.020. SkyCorp delivered the waste to this

facility because it was more cost effective to transport the waste and deposit it there than to pay to

dispose of the waste at a King County approved facility.

On July 24, 2020, SkyCorp received a citation and a $100 fine from the King County

Division of Solid Waste for violation of KCC 10.08.020 and 10.30.020. SkyCorp appealed the

citation to the King County Hearing Examiner, who affirmed the citation. Additional facts and

procedural history are set out in the majority opinion and will not be repeated here.

Among other things, SkyCorp argues that King County’s application of KCC 10.30.020 to

prohibit disposal of waste at facilities, which are in full compliance with local and state governing

authorities but not in King County, violates article XI, section 11 of the Washington Constitution.

I agree with SkyCorp on this point.

Article XI, section 11 of the Washington Constitution reads: “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.” (Emphasis added.) This constitutional

provision is a direct delegation of police power to cities and counties. Petstel, Inc. v. King County,

28 No. 57452-7-II

77 Wn.2d 144, 159, 459 P.2d 937 (1969). Our Supreme Court has described the “scope of the

police power [as] broad, encompassing all those measures which bear a reasonable and substantial

relation to promotion of the general welfare of the people.” Covell v. City of Seattle, 127 Wn.2d

874, 878, 905 P.2d 324 (1995) (internal quotation marks omitted), abrogated on other grounds by

Yim v. City of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019); see also Lawton v. Steele, 152 U.S.

133, 136, 14 S. Ct. 499, 38 L. Ed. 385 (1894) (describing the police power as “universally conceded

to include everything essential to the public safety, health, morals, and . . . of whatever may be

regarded as a public nuisance,” allowing the State to “interfere wherever the public interests

demand it”).

An ordinance complies with article XI, section 11, so long as: (1) the subject matter of the

ordinance is local; (2) the ordinance does not conflict with general laws; and (3) the ordinance is

a reasonable exercise of the County’s police power. Weden v. San Juan County, 135 Wn.2d 678,

692-93, 958 P.2d 273 (1998), abrogated on other grounds by Yim v. City of Seattle, 194 Wn.2d

682. An ordinance violates article XI, section 11 of the Washington Constitution if it fails any of

the above criterion. Id. at 692. Whether an ordinance is local, conflicts with general law, or is

reasonable is purely a question of law subject to de novo review. Id. at 693. KCC 10.30.020 fails

the first requirement.

To comply with article XI, section 11, the subject matter of an ordinance must be local.

SkyCorp argues that once debris leaves King County, it is no longer a local matter. King County

argues that the regulation is local because it only governs waste that is generated within the

County’s jurisdiction. I agree with SkyCorp.

29 No. 57452-7-II

KCC 10.30.020 regulates out of county disposal. That ordinance renders it “unlawful for

any person to deliver any county solid waste to a place other than a disposal facility designated by

the county to receive the particular waste.” KCC 10.08.020(C).

Washington law authorizes counties to designate disposal sites for solid waste generated

within the county’s jurisdiction. See RCW 36.58.040(1) (“The legislative authority of a county

may by ordinance provide for the establishment of a system or systems of solid waste handling for

all unincorporated areas of the county or for portions thereof. A county may designate a disposal

site or sites for all solid waste collected in the unincorporated areas pursuant to the provisions of a

comprehensive solid waste plan adopted pursuant to chapter 70A.205 RCW.”). However, there

are limits to this delegation of legislative authority—nothing in the statute gives the county the

authority to make these disposal sites exclusive among the several disposal sites in the state. See

generally RCW 36.58.040.4

Brown v. City of Cle Elum, 145 Wash. 588, 261 P. 112 (1927), is instructive. In that case,

the city enacted an ordinance that punished certain acts committed six miles outside of the city

limits in Cle Elum Lake, the source of the City’s drinking water. Id. at 589. Our Supreme Court

held that this was a violation of article XI, section 11, because the delegation of police power by

the state to municipalities is “strictly limited to the exercise of that power within the limits of such

municipalities.” Id. The court noted that municipalities only have such legislative powers that are

delegated to them, and the legislature is not empowered to exceed the limitation of those powers.

4 I also note that while the underlying purpose of the county ordinance appears to be a lawful purpose, and the legislature appears to have authorized flow control generally, I do not conclude it is appropriate to elevate a lawful purpose or even a legislative delegation of authority above an express constitutional limitation like we have here.

30 No. 57452-7-II

Id. at 590. The court set aside the ordinance, holding that “ordinances such as the one under

consideration here cannot be given extraterritorial effect.” Id. at 591.

More recently, in Weden, our Supreme Court found that municipal legislation is still “local”

and does not violate article XI, section 11, if its effects outside the county are only “incidental.”

135 Wn.2d at 705. In that case, motorized personal watercraft (PWC) users challenged a county

ordinance banning personal watercraft use on all marine waters in San Juan County. Id. at 688.

The challengers argued that the ordinance violated the “local” requirement of article XI, section

11, because it affected those living outside the county. Id. at 706. The Court held that the

prohibition within the boundaries of the county was purely local, despite the tangential effects on

individuals outside of the county when those individuals sought to operate their PWC within San

Juan County. Id. The court reasoned that while the ordinance had some tangential effects on

interests or individuals lying geographically outside of San Juan County, those tangential effects

did not render the ordinance not-local. The court further stated, “The bottom line is this PWC

Ordinance only affects the type of activity allowed within the county. The Ordinance does not

preclude San Juan County residents from using PWC outside the County, nor does it regulate

activities beyond geographical limits.” Id. (emphasis added).

Based on the foregoing, it is clear that a county exceeds its authority when it attempts to

regulate activity that occurs outside its boundaries, but mere incidental effects outside its

boundaries are not enough to violate article XI, section 11. In Weden, the prohibition was

completely within the jurisdictional borders of San Juan County. See 135 Wn.2d at 688. In Brown,

the ordinance regulated conduct completely outside of the municipality’s jurisdiction. See 145

Wash. at 589.

31 No. 57452-7-II

Here, like in Brown, the penalized conduct occurs outside the jurisdictional boundaries of

King County: disposal in Yakima County. And unlike Weden, the effects are not merely incidental,

they include a targeted citation and monetary fine for disposal outside the geographic boundaries

of King County. King County’s application of KCC 10.30.020 to sanction otherwise lawful

disposal of C&D materials in Yakima County fails the first of the three Weden factors.

Accordingly, King County’s application of KCC 10.30.020 in this manner violates article

XI, section 11, and is unconstitutional. I would reverse summary judgment and remand to the trial

court for entry of a summary judgment order in favor of SkyCorp.

Veljacic, J.