Filed Washington State Court of Appeals Division Two
June 13, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II VIKING JV, LLC, No. 56803-9-II
Respondent,
v.
CITY OF PUYALLUP, UNPUBLISHED OPINION
Appellant.
CRUSER, J. – Viking JV, LLC (Viking) spent $2.6 million constructing and installing sewer
facilities to extend the City of Puyallup’s sewer service to the property on which Viking built a
warehouse. The price of the construction was $3.2 million, but Viking received a $600,000
contribution from a neighboring property owner, Franklin Puyallup, LLC (Franklin), leaving
Viking to cover the remaining $2.6 million in construction costs for installing the facilities. Viking
sought a latecomer contract from the city pursuant to RCW 35.91.020, which allows a developing
property owner who installs water or sewer facilities to be partially reimbursed for construction
costs when other property owners connect to the facilities. Because Puyallup had credited
$253,000 in sewer connection fees to Franklin, the city claimed that the money it credited to
Franklin passed through to Viking as a contribution because Franklin gave Viking $600,000
toward the construction of the sewer line and facilities. Based on this passthrough contribution
theory, Puyallup excluded itself from an obligation to pay a pro rata reimbursement to Viking
under the latecomer contract the city drafted. No. 56803-9-II
After the city council approved the latecomer contract, Viking filed a lawsuit challenging
Puyallup’s decision to exclude itself from any payment obligation under the contract. Viking’s
complaint included a LUPA petition in the alternative, should the trial court determine that LUPA
was the exclusive means of review of the city’s decision. Puyallup filed a motion for summary
judgment, arguing that LUPA was the exclusive means of review and that Viking failed to comply
with LUPA’s procedural requirements. Puyallup further argued that Viking was not entitled to a
latecomer contract under the relevant statute and that, even if it was, Puyallup should not be
obligated to pay latecomer fees due to its credit of connection fees to Franklin, who contributed
$600,000 toward the construction costs. Puyallup also later argued that the contract should be
returned to the city council for correction of some numbers that the city engineer found were
incorrect. The trial court denied summary judgment to Puyallup and later granted summary
judgment to Viking. Puyallup appeals the trial court’s orders on summary judgment.
We hold that Puyallup’s arguments are without merit and affirm the trial court’s orders
denying summary judgment to Puyallup and granting summary judgment to Viking.
FACTS
I. BACKGROUND ON LATECOMER REIMBURSEMENT CONTRACTS
Chapter 35.91 RCW is the Municipal Water and Sewer Facilities Act. “The act provides a
process through which a property owner who funds [ ] construction or improvement [of water
facilities or sewer systems] . . . can obtain reimbursement for their costs from other property
owners who later connect to or use the water or sewer facilities.” Cave Props. v. City of Bainbridge
Island, 199 Wn. App. 651, 657, 401 P.3d 327 (2017). “The reimbursement amounts collected from
other property owners are called ‘latecomer fees.’ ” Id. (quoting RCW 35.91.015(1)).
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Municipalities are required by statute to contract with a developing property owner “for
the construction or improvement of water or sewer facilities that the owner elects to install solely
at the owner’s expense” when the municipality’s ordinances require construction of the facilities
“as a prerequisite to further property development.” RCW 35.91.020(1)(a). The statute further
provides that the developing property owner must submit a request for a latecomer reimbursement
contract to the municipality prior to approval of the water or sewer facility by the municipality. Id.
Such a contract must provide for pro rata reimbursement to the developing owner for a portion of
the costs of the construction of the sewer facilities. RCW 35.91.020(2)(b). These reimbursements
come from “latecomer fees received by the municipality from property owners who subsequently
connect to or use the water or sewer facilities, but who did not contribute to the original cost of the
facilities.” RCW 35.91.020(2)(c).
The Puyallup Municipal Code (PMC) similarly provides for reimbursements to property
owners who extend the city’s sewer services, collected from “noncontributing property owners”
when these property owners connect to the sewer facilities. PMC 14.20.030. Under the city’s
procedure, once the extension is complete, the developing property owner is required to submit a
notarized cost breakdown to the city engineer. PMC 14.20.040. The city engineer then prepares an
assessment roll detailing the total area of property paying or sharing the costs of constructing the
sewer main, the total area of the property that may be served by the proposed line, and the names
and addresses of all property owners that fall into the above categories. PMC 14.20.040(1)(a)-(c).
This information is then forwarded to the city council and all property owners on the assessment
roll, along with an estimate of the pro rata costs to each property owner for connecting to the sewer
main. PMC 14.20.040(2). The city council then holds a public hearing, after which the city council
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“may enter into a contract between the city and the property owners paying the cost of the
extension.” Id.
II. AGREEMENTS REGARDING INSTALLATION OF SEWER FACILITIES
Viking has constructed a warehouse on property it owns in Puyallup. Because there was
no existing city sewer infrastructure at the site, Viking installed sewer facilities, including a lift
station and main lines, to serve the property.1 These facilities would not only serve Viking’s
property, but would also serve several nearby properties that could connect to the facilities.
Franklin was constructing a shopping center around the same time that Viking was
constructing its warehouse. Franklin’s development also necessitated construction of sewer
facilities. Viking entered into an agreement with Franklin in 2017 concerning the construction of
1 The Mitigated Determination of Non-Significance (MDNS) issued by the city states: There is no existing City sewer infrastructure serving the project site and surrounding area, thus constituting a potentially significant impact given potential future sewer needs of the site and vicinity under current zoning. Based upon a review of project/sub-basin sewer generation relative to City sewer facilities plans, a preferred alignment and scope of sewer infrastructure to serve this site has been identified. Specifically, a technical memorandum (“Analysis for East Valley Sewer Service Area,” BHC Consultants, 11/13/14) documents the prescribed sewer infrastructure necessary to adequately connect this project site with the prescribed downstream sewer system, as consistent with City utility plans. In sum, this BHC document prescribes a sewer line alignment, consisting of gravity/forced main lines, lift stations[,] and related equipment, extending sewer service from this site/vicinity south to the “Cross-Valley” sewer trunk line in the vicinity of Shaw Road-12th Avenue SE. Prior to issuance of any occupancy permits for this project site, said sanitary sewer infrastructure shall be installed, to City Engineer approval, the provision of which will adequately mitigate this potentially significant impact to Public Services/Utilities. Please see Mitigation condition #8 later in this document for further detail. Clerk’s Papers at 587. Mitigation condition #8 provided that “sanitary sewer infrastructure shall be installed, as specified in the ‘Analysis for East Valley Sewer Service Area’ technical memorandum (BHC Consultants, 11/7/14) or as otherwise approved by the City Engineer, to provide adequate sewer service” to the project site. Id. at 591. 4 No. 56803-9-II
sewer facilities that would benefit both of their properties. Under the agreement, Viking
constructed a sewer lift station and sewer lines at Viking’s “sole cost and expense,” aside from a
payment of $600,000 from Franklin. Clerk’s Papers (CP) at 84. The lift station was constructed on
Franklin’s property, and the sewer lines were primarily constructed on property owned by Cascade
Shaw Development, LLC (Cascade). Viking agreed not to seek latecomer fees from either Franklin
or Cascade in exchange for the property rights granted and the monetary contribution from
Franklin.
Franklin also came to an agreement with the city in which the city agreed to give Franklin
a credit of approximately $253,000 in system development charges (SDCs), which are imposed on
new customers who connect to the public sewer system. In the evidence submitted below, which
includes both letters and emails sent to and from the city, the city offered inconsistent explanations
about why it granted this credit.2 Viking was not informed of this arrangement until it learned
about the credits in a separate, related administrative appeal.
2 The record contains a letter from Franklin to the city in January 2015 indicating Franklin’s intent to enter into a latecomer reimbursement contract because Franklin expected to fund construction of the facilities, though the letter also indicates that Franklin was coordinating with other developers in the area. Accordingly, the city may have agreed to credit the SDCs to Franklin in consideration of Franklin’s plan to construct the sewer facilities that were ultimately constructed by Viking, without the city knowing that Viking actually constructed the facilities. However, the record is unclear on exactly when the city agreed to credit the fees for Franklin because it lacks any formal memorialization of the agreement. It was not until March 2019 that Franklin informed the city engineer in an email that, in an “earlier meeting[ ],” it had been agreed that Franklin’s $600,000 payment to Viking would “offset” the SDCs, and the city engineer emailed back that the city agreed the SDCs were offset by Franklin’s “[c]ontribution toward the lift station.” Id. at 192. Therefore, in correspondence after the 2015 letter, it appears that the city knew that Viking would be the developer responsible for constructing the sewer facilities, and the city, without involving Viking, unilaterally decided that the credit it gave to Franklin would be deemed a contribution to Viking for the cost of constructing the sewer facilities. As a result, the city excused itself from the obligation to pay a latecomer fee when it later connected to the facilities as part of the city’s development of a park on city-owned property. 5 No. 56803-9-II
III. LATECOMER CONTRACT SOUGHT BY VIKING
Viking requested a latecomer contract from the City of Puyallup for partial reimbursement
of its construction costs for the sewer facilities pursuant to RCW 35.91.020. The total cost for
constructing the facilities was approximately $3.2 million. After accounting for the $600,000
contribution from Franklin, the “[t]otal cost reimbursable to Viking” was approximately $2.6
million. Id. at 31.
The city prepared a latecomer contract that stated both Franklin and the city contributed to
the construction costs. Based on the square footage of property capable of being served by the
sewer facilities, and excluding the square footage of the property owned by Franklin and the City
of Puyallup, the reimbursement cost under the latecomer contract was $0.2728 per square foot.
Under the contract prepared by the city, the city’s property was excluded from the assessment roll,
or list of properties obligated to pay latecomer fees to Viking. See PMC 14.20.040(1). The city
otherwise would have been obligated to pay approximately $199,000 for connecting to the sewer
lift station.
The Puyallup City Council held a public hearing on the latecomer contract. Viking’s lawyer
and one of its managers spoke at the hearing, opposing the exclusion of the city from paying
latecomer fees. Following the hearing, the city council approved the contract in its current form
(with the exception of an amendment to remove Cascade from any obligation to pay, pursuant to
Viking’s agreement with Franklin). Viking informed the city that it intended to sign the contract
under protest after filing a lawsuit, and the city subsequently withdrew the DocuSign invitation for
Viking to sign the contract, meaning no contract had been signed prior to the present litigation.
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IV. LITIGATION
Viking brought a complaint for a declaratory judgment, injunctive relief, and writ of
mandamus specifically challenging the city’s decision to exclude its property from a pro rata
payment obligation under the latecomer contract. According to Viking’s complaint, because the
relief it sought simply added a party—the city—to pay reimbursement fees, relief granted to
Viking would not increase the payment obligation of any other property owners that were currently
on the assessment roll. Viking’s complaint also included a LUPA petition in the alternative “in an
abundance of caution” so that it could preserve its right to challenge the latecomer contract, even
though it did not believe that LUPA applied. Id. at 3. Viking also sought an order authorizing
recording of the latecomer contract in the form approved by the city council so that Viking did not
lose the opportunity to collect latecomer fees during the pendency of the litigation.
Puyallup brought a motion to dismiss and/or for summary judgment. Relevant here,
Puyallup primarily argued that a developer who receives a contribution from any other party
toward construction costs of sewer facilities, such as Viking, is not entitled to a latecomer contract
under RCW 35.91.020(1)(a)3 because sewer facilities are not installed solely at the developer’s
expense when there has been a contribution. Thus, Viking was not entitled to collect latecomer
fees from any party who later connected to the sewer system it paid $2.6 million to construct
3 As explained above, RCW 35.91.020(1)(a) provides: At the owner’s request, a municipality must contract with the owner of real estate for the construction or improvement of water or sewer facilities that the owner elects to install solely at the owner’s expense. The owner must submit a request for a contract to the municipality prior to approval of the water or sewer facility by the municipality. The owner’s request may only require a contract under this subsection (1)(a) in locations where a municipality’s ordinances require the facilities to be improved or constructed as a prerequisite to further property development. 7 No. 56803-9-II
because Franklin contributed $600,000 to the construction, and Franklin and Cascade both
contributed property rights. Alternatively, the city argued that its $253,000 SDC credit to Franklin
passed through to Viking and therefore constituted a contribution to the original cost of the
facilities. Thus, the city argued, even if Viking was entitled to a latecomer contract under RCW
35.91.020(1)(a), Viking would not be able to seek latecomer fees from the city under RCW
35.91.020(2)(c) due to this contribution.
Puyallup also argued that the city council’s approval of the latecomer contract was a land
use decision and, therefore, subject to exclusive review under LUPA. Accordingly, because Viking
did not serve its petition on “ ‘[e]ach person identified by name and address in the local
jurisdiction’s written decision as an owner of the property at issue,’ ” which the city contended
was all property owners required to pay latecomer fees under the contract, the city argued that the
petition must be dismissed. CP at 47 (quoting RCW 36.70C.040).
The trial court denied the city’s motion, and it also granted Viking’s motion to record the
latecomer contract. The contract was to be recorded with a notation indicating that Viking
approved the contract except as to the issue of the city’s payment obligation, which the parties
were litigating, and that resolution of the dispute would not result in an increase in fees to any
property owner on the assessment roll. Any fees collected pursuant to the latecomer contract would
be paid into the court registry until the case was resolved.
Viking subsequently moved for summary judgment. Puyallup’s responsive materials
included a request to return the latecomer contract to the city council for correction. This was based
on a declaration from City Engineer Hans Hunger, who stated: “Upon review of the documents
related to this matter in preparation for providing this declaration I learned that several of the
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numbers included in . . . [the] original latecomer agreement were incorrect.” Id. at 554. Hunger
attached “a new version . . . with the corrected numbers shown.” Id. The declaration did not appear
to provide any explanation regarding the correction or calculation of the numbers. The suggested
changes in the new version included an increase in the total square footage of property able to be
served by the sewer facilities and obligated to reimburse costs, as well as an increase in the total
square footage of the City of Puyallup and Franklin properties “contributing to [the] project.” Id.
at 593. These changes resulted in a decrease to the reimbursement costs per square foot.
In support of Viking’s reply, Viking submitted a declaration from a managing officer, who
stated that the warehouse was approximately 450,000 square feet and that the “project could not
have been constructed without connection to sewer. Septic was never a viable option.” Id. at 612.
There is no evidence in the record that disputes or conflicts with these assertions by Viking. The
declaration also disputed Hunger’s “corrected” numbers regarding the square footage able to be
served by the sewer facilities, stating that it appeared that Hunger added undevelopable property
to the calculations that the city had previously agreed could not be served by the lift station.
The trial court granted Viking’s motion for summary judgment. The court specified that
the motion was decided pursuant to the court’s authority under the Uniform Declaratory Judgments
Act, chapter 7.24 RCW, and that Viking’s challenge as presented was not subject to exclusive
review under LUPA. In addition, the court concluded that Puyallup was required to contract with
Viking under RCW 35.91.020, the city’s SDC credits to Franklin did not constitute a contribution
to the original costs of constructing the sewer facilities, and, therefore, the city unlawfully excluded
itself from the contract as a property owner obligated to pay a pro rata reimbursement to Viking
upon connection to the facilities. Accordingly, the court ordered the city to revise the latecomer
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contract to include the city as a property owner subject to latecomer fees. The court further ordered
the city not to revise any aspect of the latecomer contract aside from this addition and
accompanying reduction of other property owners’ pro rata share of the reimbursement costs.
The city appeals the trial court’s orders denying its motion for summary judgment and
granting Viking’s motion for summary judgment.
DISCUSSION
I. STANDARD OF REVIEW
We review a summary judgment order de novo, viewing the facts and all reasonable
inferences therefrom in the light most favorable to the nonmoving party. Meyers v. Ferndale Sch.
Dist., 197 Wn.2d 281, 287, 481 P.3d 1084 (2021). Summary judgment is appropriate when the
pleadings, affidavits, depositions, and admissions on file demonstrate that there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).
“An issue of material fact is genuine if the evidence is sufficient for a reasonable jury to return a
verdict for the nonmoving party.” Reyes v. Yakima Health Dist., 191 Wn.2d 79, 86, 419 P.3d 819
(2018). Here, the parties do not dispute any issue of material fact; rather, the questions presented
in this appeal concern whether Viking was entitled to judgment as a matter of law.
II. PRINCIPLES OF STATUTORY INTERPRETATION
Statutory interpretation is a question of law that we review de novo. Dep’t of Ecology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). Our “objective is to ascertain and
carry out the Legislature’s intent.” Id. “[I]f the statute’s meaning is plain on its face,” we “must
give effect to that plain meaning as an expression of legislative intent.” Id. at 9-10. We are to
discern plain meaning “ ‘from the ordinary meaning of the language at issue, the context of the
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statute in which that provision is found, related provisions, and the statutory scheme as a whole.’ ”
State v. Gonzalez, 168 Wn.2d 256, 263, 226 P.3d 131 (2010) (quoting State v. Engel, 166 Wn.2d
572, 578, 210 P.3d 1007 (2009)).
If, after a review of the plain meaning, a statute is susceptible to more than one reasonable
interpretation, it is ambiguous. Id. “[B]ut ‘a statute is not ambiguous merely because different
interpretations are conceivable.’ ” Id. (internal quotation marks omitted) (quoting Est. of
Haselwood v. Bremerton Ice Arena, Inc., 166 Wn.2d 489, 498, 210 P.3d 308 (2009)). If a statute
is ambiguous, we may look to legislative history and relevant case law to discern legislative intent.
Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003 (2014).
III. APPLICABILITY OF LUPA
The city argues that LUPA is the exclusive means of challenging the city council’s
approval of the latecomer contract and that the trial court erred by not dismissing Viking’s lawsuit
because Viking failed to comply with LUPA’s procedural requirements. Viking argues that LUPA
does not apply because the city’s property is not regulated by the latecomer contract and, even if
LUPA did apply, Viking complied with LUPA’s procedural requirements. We agree with Viking.
A. LEGAL PRINCIPLES
With limited exceptions, LUPA is “the exclusive means of judicial review of land use
decisions.” RCW 36.70C.030(1). However, if an appeal does not involve a “land use decision,” it
is not subject to review under LUPA. Cave, 199 Wn. App. at 656. LUPA defines land use decision
as follows:
[A] final determination by a local jurisdiction’s body or officer with the highest level of authority to make the determination, including those with authority to hear appeals, on
11 No. 56803-9-II
(a) An application for a project permit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used . . . ;
(b) An interpretative or declaratory decision regarding the application to a specific property of zoning or other ordinances or rules regulating the improvement, development, modification, maintenance, or use of real property; and
(c) The enforcement by a local jurisdiction of ordinances regulating the improvement, development, modification, maintenance, or use of real property. . . .
RCW 36.70C.020(2)(a)-(c).
B. ANALYSIS
Puyallup argues that LUPA is the exclusive means of challenging the city council’s
decision to approve the latecomer contract at issue in this case because that constituted a land use
decision.
The parties dispute whether Cave is controlling on the issue of whether the latecomer
contract in this case is subject to exclusive review under LUPA. In Cave, this court held that the
Bainbridge Island City Council’s approval of a latecomer reimbursement contract was a land use
decision under RCW 36.70C.020(2)(b). 199 Wn. App. at 654. In the contract at issue in Cave,
property owners in the identified area were required to pay reimbursement charges prior to
connecting to the water main that had been installed by another property owner. Id. The only
undeveloped properties in the reimbursement area were owned by Cave and the developing owner
who requested the latecomer contract. Id.
Relying on principles of statutory interpretation, the Cave court concluded that the city
council’s approval of the contract met the three elements to qualify as a land use decision under
RCW 36.70C.020(2)(b): “(1) an interpretative or declaratory decision[,] (2) regarding the
application to a specific property[,] (3) of zoning or other ordinances or rules regulating the
12 No. 56803-9-II
improvement, development, modification, maintenance, or use of real property.” Id. at 663.
Regarding the final element, the court reasoned that the latecomer reimbursement contract was
governed by the city’s ordinances and that “the ordinances ‘regulated’ Cave’s use and development
of its property” because Cave was required to pay the charges prior to any development on its
property that would necessitate connection to the water main covered by the contract. Id. at 664.4
Here, Viking’s specific challenge concerned Puyallup’s decision to exclude itself from any
payment obligation under the latecomer contract. Cave, therefore, does not resolve the issue of
whether the city council’s decision to approve the contract was a land use decision because the
city was not required to pay any fees prior to development on its property requiring connection to
the facilities, as was the situation in Cave. As noted by the court in Cave, the latecomer contract
was governed by the city’s ordinances, and the reason these ordinances regulated Cave’s property
use and development was because the fees needed to be paid prior to any development on the
property. Id. But here, as pointed out by Viking, the city’s property was specifically excluded from
the assessment roll and was not subject to the latecomer contract. Accordingly, Puyallup’s specific
property was not regulated by the decision, so Viking’s challenge was not subject to exclusive
review under LUPA.
4 The court noted that an unpublished Division One case was instructive but “not directly on point” because the contract in the other case mandated reimbursement payments if property owners engaged in any development, whereas the contract at issue in Cave only mandated reimbursement payments if a property owner intended to connect to the water main. 199 Wn. App. at 665-66. 13 No. 56803-9-II
C. WHETHER VIKING COMPLIED WITH LUPA’S PROCEDURAL REQUIREMENTS
Even if LUPA applied in this case, Viking complied with LUPA’s procedural
requirements.
LUPA’s procedural requirements are strictly enforced, and a party’s failure to comply with
these requirements bars their LUPA petition. Viking JV, LLC v. City of Puyallup, 22 Wn. App. 2d
1, 9, 509 P.3d 334 (2022). Relevant here, a LUPA petition must be dismissed unless it is timely
filed with the court and served on “[e]ach person identified by name and address in the local
jurisdiction’s written decision as an owner of the property at issue.” RCW 36.70C.040(2)(b)(ii).
Puyallup argues that Viking’s LUPA petition should have been dismissed because Viking
failed to serve the petition on “the owners of the properties at issue that the latecomer application
and decision included as regulated properties.” Br. of Appellant at 33. In other words, Puyallup
contends that all property owners required to pay reimbursement fees under the latecomer contract
were owners of “the propert[y] at issue” and that Viking was required to serve its petition on these
property owners. Id.
However, Viking’s challenge to the latecomer contract concerned only the city’s decision
to exclude itself from any payment obligation under the contract. Viking’s complaint even clarified
that, because the relief it sought added a party to pay reimbursement fees, it would not increase
the payment obligation of any other property owners already identified in the contract. If, to qualify
as a land use decision under RCW 36.70C.020(2)(b), the decision must concern a “specific
property,” then that must in turn be the “property at issue” for purposes of serving the proper
parties with the petition under RCW 36.70C.040(2)(b)(ii). Accordingly, here, the “specific
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property” in the land use decision is the city’s property, which Viking is challenging the exclusion
of in the contract.
Puyallup does not challenge the service of Viking’s petition on Puyallup, only on other
property owners, which Viking was not required to do. Viking complied with LUPA’s procedural
requirements, so it was not error for the trial court not to dismiss the petition on this basis.
IV. WHETHER VIKING IS ENTITLED TO A LATECOMER CONTRACT UNDER RCW 35.91.020 AND WHETHER PUYALLUP CONTRIBUTED TO THE ORIGINAL COST OF THE FACILITIES
Puyallup argues that Viking is not entitled to a latecomer contract under RCW 35.91.020
because Viking did not meet the requirements under that statute, and that, even if Viking is entitled
to a latecomer contract under the statute, the city should not be required to pay latecomer fees to
Viking under the contract because it contributed to the original cost of the facilities. Viking argues
that it met the requirements under RCW 35.91.020 to be entitled to a latecomer contract under the
statute and that the city did not contribute to Viking’s original construction costs. We agree with
Viking.
As explained above, “a municipality must contract with the owner of real estate for the
construction or improvement of water or sewer facilities that the owner elects to install solely at
the owner’s expense.” RCW 35.91.020(1)(a). Such a contract is to provide for reimbursement for
the cost of construction on a pro rata basis when other property owners subsequently connect to or
use the facilities. RCW 35.91.020(2)(b)-(c).
But a contract is only required by statute when the “municipality’s ordinances require the
facilities to be improved or constructed as a prerequisite to further property development.” RCW
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35.91.020(1)(a). Furthermore, the latecomer fees under the contract must only come from property
owners “who did not contribute to the original cost of the facilities.” RCW 35.91.020(2)(c).
1. Whether Viking is Entitled to a Latecomer Contract
a. Contributions Do Not Defeat a Property Owner’s Ability to Seek a Latecomer Contract
The city argues that Viking is not entitled to a latecomer contract under RCW 35.91.020
because the facilities were not installed solely at Viking’s expense due to Franklin’s monetary
contribution to the construction cost.
Puyallup’s argument that Viking is not entitled to a latecomer contract under the statute
because the facilities were not constructed solely at Viking’s expense is without merit. When
determining the plain meaning of a statute, we look at related statutory provisions. Gonzalez, 168
Wn.2d at 263. As noted by Viking, the requirement in RCW 35.91.020 that the developing owner
must install the sewer facilities “solely at the owner’s expense” appears in subsection (1)(a), and
further in the statute, it clarifies that latecomer fees may only be collected “from property owners
who subsequently connect to or use the . . . sewer facilities, but who did not contribute to the
original cost of the facilities.” RCW 35.91.020(2)(c) (emphasis added).
The fact that property owners “who did not contribute to the original cost of the facilities”
are subject to paying fees under a latecomer contract shows that the legislature contemplated
circumstances where other property owners may choose to contribute and, due to their
contribution, should not be required to pay fees under such a contract. Id. Such a contribution
clearly does not preclude a developing owner from seeking latecomer reimbursement from other
property owners for portions that the developing owner solely paid for; the owner is simply only
16 No. 56803-9-II
able to seek reimbursement for those costs that were solely their expense. RCW 35.91.020(1)(a).
Puyallup responds that subsection (2)(c) “simply confirms that latecomer fees will not be collected
from the property owner who installed the facilities,” but this argument is illogical considering the
reimbursements go to that property owner. Reply Br. of Appellant at 28. Accordingly, Viking
satisfied the requirement that the facility costs subject to reimbursement were solely Viking’s
because Franklin’s $600,000 contribution was excluded from the costs for which it sought
reimbursement.
b. Viking Was Required to Install the Sewer Facilities
The city also argues that Viking is not entitled to a latecomer contract because Puyallup’s
ordinances did not require Viking to construct the facilities as a prerequisite to further
development. We disagree.
Puyallup’s argument can be summarized as follows: In planning this project, Viking had
two different options. The first option was for Viking to install its own septic system that would
not have required installation of sewer infrastructure. The city contends that Viking did not utilize
this option, even though it could have, because it “chose instead to maximize warehouse square
footage.” Br. of Appellant at 7.
The second option was for Viking to install sewer infrastructure consisting of a sewer lift
station and sewer lines to extend city sewer service. Under this option, the city concedes that it did
require these facilities to be installed in order for Viking to satisfy the MDNS that was issued for
this project. According to the city, however, the requirements under the MDNS only became true
requirements on which further development was conditioned because Viking chose this second
option rather than simply install a septic system.
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Puyallup’s argument, however, ignores that a septic system was not viable for the 450,000-
square foot warehouse Viking sought to build. To say that Viking could have chosen the first
option of installing its own septic system is tantamount to saying that Viking could have chosen
not to build the warehouse at all. Puyallup has never disputed Viking’s declaration that it could
not have installed a septic system for this warehouse.
Puyallup relies on this court’s decision in Woodcreek Land Ltd. Partnerships I, II, III and
IV v. City of Puyallup, 69 Wn. App. 1, 847 P.2d 501 (1993). In Woodcreek, the city made street
improvements after a traffic study recommended widening the street. 69 Wn. App. at 2-3. After
the first improvement phase was complete, the city sought reimbursement through latecomer fees
from property owners in the affected area. Id. at 3. Following a challenge from one of the property
owners, the court analyzed language from RCW 35.72.010 stating that a municipality “ ‘may
contract with owners of real estate for the construction or improvement of street projects which
the owners elect to install as a result of ordinances that require the projects as a prerequisite to
further property development.’ ” Id. at 4-5 (quoting RCW 35.72.010).
The city in Woodcreek urged this court to hold that Title 21 of the PMC, which “set up the
City’s environmental policy and which adopted the City’s Comprehensive Plan,” and also
expressed an intent to improve that specific street, satisfied the ordinance requirement. Id. at 6.
However, the court explained that those provisions did not require such improvements prior to
further property development and did not satisfy the requirements of RCW 35.72.010. Id.
Title 21 PMC, Puyallup’s environmental policy, was adopted by ordinance under SEPA5
and accompanying regulations. PMC 21.04.010. Under this portion of the PMC, mitigation
5 State Environmental Policy Act (SEPA), ch. 43.21C RCW. 18 No. 56803-9-II
measures found in an MDNS issued by the city “shall be deemed conditions of approval of the
permit decision and may be enforced in the same manner as any term or condition of the permit,
or enforced in any manner specifically prescribed by the city.” PMC 21.04.120(7).
Here, Puyallup argues that “[c]onsistent with Woodcreek, [ ] there is no City ordinance that
required Viking to improve or construct the facilities as a prerequisite to further property
development.” Br. of Appellant at 45. However, in Woodcreek, the improvements were not made
as a mitigation measure required by an MDNS. Although no provision of Title 21 PMC specifically
requires construction of the sewer facilities in this case, Puyallup acted under its authority within
Title 21 to require Viking to construct sewer facilities consistent with a technical memorandum
that prescribed the type of sewer infrastructure necessary for the project before Viking could obtain
any occupancy permits for the project site. The MDNS stated that this was required because
“[t]here is no existing City sewer infrastructure serving the project site and surrounding area, thus
constituting a potentially significant impact given potential future sewer needs of the site and
vicinity under current zoning.” CP at 587 (emphasis omitted).
Because Puyallup acted under its SEPA authority consistent with Title 21 PMC in requiring
Viking to construct the sewer facilities as a condition of development, we hold that the ordinances
required Viking to construct the facilities as a prerequisite to further development. Accordingly,
Viking satisfied the requirements of RCW 35.91.020 and Puyallup was therefore required to enter
into a latecomer contract with Viking under the statute.
2. Whether Puyallup Contributed to Original Cost of the Facilities
Puyallup further argues that, even if Viking is entitled to a latecomer contract under RCW
35.91.020, the city should not be required to pay latecomer fees under any such contract because
19 No. 56803-9-II
it contributed to the original cost of the facilities. Specifically, Puyallup argues that its SDC credits
to Franklin passed through to Viking as a contribution.
The statute does not define contribution, but it states that reimbursements through
latecomer fees may only be collected from “property owners who subsequently connect to or use
the . . . sewer facilities, but who did not contribute to the original cost of the facilities.” RCW
35.91.020(2)(c) (emphasis added). In its argument, Puyallup points out that the city’s $253,000 in
credits went to Franklin to offset Franklin’s contribution to the lift station. Therefore, under the
city’s own argument, it plainly did not “contribute to the original cost of the facilities.” Id. Rather,
Franklin contributed $600,000 to the original cost of the facilities, and the city credited SDCs to
Franklin that it otherwise would have charged for Franklin’s connection to the facilities under the
assumption that this credit would be a contribution. But this credit did not go toward the original
cost of the facilities; it might be more accurate to say that the credit partially reimbursed Franklin
for the money that Franklin contributed to the original cost of the facilities.
Furthermore, Franklin’s contribution was not included in the costs for which Viking seeks
reimbursement. As described above, under RCW 35.91.020(1)(a), a developing owner may only
seek reimbursement for construction of sewer facilities that were solely at the owner’s expense.
Any pro rata reimbursement to the owner under a latecomer contract, therefore, actually
reimburses the developing owner for the costs it actually incurred, with contributing property
owners specifically excluded, so that the developing owner is not reimbursed for costs paid by
contributors. Because Franklin’s $600,000 contribution was, therefore, excluded from Viking’s
costs under the latecomer agreement, it is unclear how the city’s credit to Franklin as a result of
this contribution would be a contribution for the costs for which Viking sought reimbursement.
20 No. 56803-9-II
To the extent that Puyallup argues that it partially reimbursed Franklin for its contribution
to Viking, rendering the $600,000 received by Viking a joint contribution from both Franklin and
the city, it would be unfair to reduce the reimbursement Viking should receive through a latecomer
contract based on a side agreement that it was never informed of. Viking contracted for the
$600,000 contribution from Franklin in exchange for Viking incurring the remainder of the
construction costs, and Viking agreed by contract not to pursue latecomer fees from Franklin and
Cascade due to this contribution. Viking made no such agreement with the City of Puyallup.
We hold that Puyallup’s SDC credits to Franklin did not constitute a contribution to the
original cost of the sewer facilities.
V. REVISIONS TO LATECOMER CONTRACT
Lastly, the city contends that the trial court erred by refusing to allow the city to make
corrections to the latecomer contract before signing it. The city’s argument is based on the
declaration of the city engineer, Hunger, who stated that he “learned that several of the numbers
included in . . . [the] original latecomer agreement were incorrect” after he reviewed the documents
to prepare his declaration. CP at 554. However, the city claims that we “need not sort through the
various calculations and exhibits to the latecomer agreement,” confining its argument to the idea
that if the latecomer contract is not a land use decision under LUPA, the city should be able to
make whatever corrections it deems necessary to the calculations. Reply Br. of Appellant at 35.
The city has not made any argument to this court that any corrections are actually
necessary; it merely states that if it believes corrections are necessary, it should be allowed to make
such corrections. But the city has cited no authority for such a proposition. When a party cites no
authority in support of a proposition, we may assume counsel has found none. DeHeer v. Seattle
21 No. 56803-9-II
Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962). Accordingly, the city has not
established any error in the trial court’s decision not to allow corrections to the latecomer contract.
CONCLUSION
We hold that Puyallup’s arguments are without merit and affirm the trial court’s orders
denying summary judgment to Puyallup and granting summary judgment to Viking.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
CRUSER, J. We concur:
GLASGOW, C.J.
CHE, J.