Tapps Brewing, Inc. v. City of Sumner

106 Wash. App. 79
CourtCourt of Appeals of Washington
DecidedMay 4, 2001
DocketNo. 25252-0-II
StatusPublished
Cited by5 cases

This text of 106 Wash. App. 79 (Tapps Brewing, Inc. v. City of Sumner) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tapps Brewing, Inc. v. City of Sumner, 106 Wash. App. 79 (Wash. Ct. App. 2001).

Opinion

Armstrong, C. J.

The City of Sumner imposes a General Facilities Charge (GFC) to pay for improvements to its storm drainage system. The City imposes the charge, which is based on the amount of impervious surface on the property, upon property owners when it issues development permits. Two property owners challenged the GFCs the City imposed on their developments. After the trial court denied the property owners’ summary judgment motion, the parties stipulated to the issue of law before us: Are the GFCs illegal charges on real estate development prohibited by RCW 82.02.020? We affirm, holding that RCW 82.02.020 does not bar the GFCs.

FACTS

From 1990 to 1992, the City of Sumner’s Drainage District 11 experienced severe flooding. To solve its drainage problem, the City constructed the East Sumner Storm Drainage Trunk Line. To pay for the drainage line, the City incurred bond indebtedness to be repaid over 20 years. One source of money to repay the bonds is a storm water GFC. The City calculates the fee amount based on the total amount of impervious surface on the property.1 The City considers gravel driveways and parking lots to be impervious surfaces. The City deposits the money collected into an account used for capital improvements and debt service.

Tapps Brewing, Inc., remodeled an existing building and paved an existing gravel parking lot. When it issued the [82]*82development permit, the City required Tapps to pay $9,950 as a storm water GFC. Daniel McClung replaced an existing building and paved a gravel alley for parking. The development added 3,576 square feet of impervious surface. The existing storm drain running through McClung’s property was too small, so the City required McClung to install larger pipe as a condition to building permit approval. In exchange, the City waived the storm water GFC and other charges, which the City estimated would have totaled $8,000 to $8,500. McClung spent $50,872 upgrading the pipe.

Tapps and McClung sued the City of Sumner, challenging the GFC as an invalid charge under RCW 82.02.020, which limits drainage utility charges to the proportionate share of capital costs attributable to the property. The trial court denied Tapps and McClung’s motion for summary judgment. We granted discretionary review.

ANALYSIS

Parties generally may not appeal a denial of a motion for summary judgment. RAP 2.2(a); Sea-Pac Co. v. United Food & Commercial Workers Local Union 44, 103 Wn.2d 800, 801-02, 699 P.2d 217 (1985). But an appellate court may grant discretionary review if the parties stipulate “that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review of the order may materially advance the ultimate termination of the litigation.” RAP 2.3(b). The parties have done so here.

We review a trial court’s summary judgment order and its interpretation of a statute de novo. Eelbode v. Chec Med. Ctrs., Inc., 97 Wn. App. 462, 465-66, 984 P.2d 436 (1999). In construing a statute, we seek to ascertain and give effect to the legislature’s intent. Duke v. Boyd, 133 Wn.2d 80, 87, 942 P.2d 351 (1997). If the statutory language is clear and unambiguous, we look no further. Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325, 329, 815 P.2d 781 [83]*83(1991). “A statute is ambiguous if it is susceptible of two or more reasonable interpretations.” U.S. Tobacco Sales & Mktg. Co. v. Dep’t of Revenue, 96 Wn. App. 932, 938, 982 P.2d 652 (1999).

Tapps and McClung argue that the City’s GFC, or improvements required in lieu of the GFC, are illegal under RCW 82.02.020. The City relies on chapter 35.67 RCW for its authority to impose the GFC. The City argues that we should not consider whether the City has statutory authority to impose the GFC because the issue was not part of the stipulation under RAP 2.3(b). But we must determine the source of the City’s authority in order to determine whether RCW 82.02.020 prohibits the charges (see discussion of validity under RCW 82.02.020 below).

I. Statutory Authority Under RCW 35.67.020

RCW 35.67.020 provides that a city may construct “systems of sewerage” and has authority to “fix, alter, regulate, and control the rates and charges for their use.”2 Tapps and McClung argue that RCW 35.67.020 does not authorize the City to impose the GFC. They contend that the charge is not for the use of the system RCW 35.67.020 authorized. They also maintain that the City applies the charge disproportionately. The language of RCW 35.67.020 is clear and unambiguous.

The statute authorizes cities and towns to construct and operate systems of sewerage and charge users for the cost. RCW 35.67.020. And systems of sewerage include storm or surface water sewers. RCW 35.67.010(3). Even though the GFCs at issue here are one-time charges, the [84]*84City assesses and uses them to retire the debt it incurred in constructing the storm drainage system. Because RCW 35.67.020 gives the City broad authority to “construct . . . purchase, acquire, add to, maintain . . . and operate systems of sewerage,” the authority to charge for its use must include charging for capital costs. We hold that RCW 35.67.020 authorizes the GFCs at issue here.

Tapps and McClung argue that the City must apply the storm water GFC proportionately to the service a customer received.

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Related

Tapps Brewing Inc. v. City of Sumner
482 F. Supp. 2d 1218 (W.D. Washington, 2007)
Douglass v. Spokane County
64 P.3d 71 (Court of Appeals of Washington, 2003)
Tapps Brewing, Inc. v. City of Sumner
22 P.3d 280 (Court of Appeals of Washington, 2001)
Cohn v. Department of Corrections
895 P.2d 857 (Court of Appeals of Washington, 1995)

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Bluebook (online)
106 Wash. App. 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tapps-brewing-inc-v-city-of-sumner-washctapp-2001.