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Schmitt v. Cape George Sewer District No. 1

April 23, 1991

JEAN A. SCHMITT, ET AL, APPELLANTS,
v.
CAPE GEORGE SEWER DISTRICT NO. 1, ET AL, RESPONDENTS



Alexander, J. Worswick, C.j., and Petrich, J., concur.

Author: Alexander

Jean and William Schmitt and Lili and Milton Foss appeal a judgment of the Jefferson County Superior Court declaring that a Utility Local Improvement District (ULID) was validly created. They contend on appeal that the trial court erred in concluding that commissioners of the Cape George Sewer District (1) had the power to exclude from their calculations certain land within the boundaries of a proposed ULID when determining the sufficiency of the petition to create the ULID; and (2) did not violate the Open Public Meetings Act of 1971. We reverse.

The facts are not in dispute. The Schmitts and the Fosses reside within the Cape George Sewer District in Jefferson County. In 1988, the District's commissioners attempted to form a ULID by a resolution of the commission. The attempt was defeated by a protest petition spearheaded by the Schmitts and the Fosses.*fn1

In early 1989, a petition to form a ULID was presented to the Sewer District commissioners by some of the residents of the District. At a nonscheduled meeting of the commission on February 28, 1989, the commissioners met and discussed guidelines for verifying signatures on the petition to form the ULID and the manner for determining if the petition contained the signatures of a statutorily sufficient number of landowners within the proposed ULID. See RCW 56.20.020. Three days later, at a regularly scheduled meeting of the commission, the commissioners passed a "Resolution of Intention" to form a ULID. The proposed ULID included land owned by the Cape George Colony Club, Inc., a nonprofit corporation. In determining that the petition contained the requisite signatures of owners of 51 percent, or more, of the land area within the proposed district, the commissioners excluded the Club's common areas and roads from their calculations. After excluding these areas, the commissioners concluded that the petition contained signatures of owners of 54.1 percent of the land within the proposed ULID. It is agreed that if all of Cape George Colony's land had been included in the calculations, the percentage would have been 41 percent. After several more public meetings, the commissioners adopted a resolution creating the ULID.

The Schmitts and the Fosses appealed the commissioners' decision to the Jefferson County Superior Court, asserting that the commissioners' actions should be overturned because of violations of the Open Public Meetings Act of 1971 and because the commissioners erred in determining that owners of 51 percent, or more, of the land area within the proposed ULID had signed the petition.*fn2 The Superior Court, after a hearing, affirmed the commissioners' action.

We are confronted with essentially two issues: (1) was the ULID validly created? (2) Are the Schmitts and the Fosses entitled to attorney's fees based on their claim that the Open Public Meetings Act of 1971 was violated?

[1, 2] Appellate court review of an administrative decision is made on the record of the administrative tribunal itself, not on that of the superior court. Franklin Cy. Sheriff's Office v. Sellers, 97 Wash. 2d 317, 323-24, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106 (1983). Issues of law are reviewed de novo under the error of law standard. This standard allows the reviewing court to essentially substitute its judgment for that of the administrative body. However, substantial weight is given to the agency's view of the law. Franklin Cy. Sheriff's Office, 97 Wash. 2d at 325.

The Schmitts and the Fosses argue that pursuant to RCW 56.20.020, all of the area of land within a proposed ULID must be included when the commissioners determine whether or not the petition contained signatures of the requisite number of landowners within the proposed ULID.

They contend that in making their decision, the commissioners did not comply with RCW 56.20.020, and, therefore, ...


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