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Hitchcock v. Heights Water

October 7, 1996

SCOTT HITCHCOCK AND INGRIDA HITCHCOCK, HUSBAND AND WIFE, APPELLANTS,
v.
HEIGHTS WATER, A PRIVATE NON-PROFIT INCORPORATED WATER ASSOCIATION, AND REED FITZPATRICK, PRESIDENT, RESPONDENTS.



Appeal from Superior Court of King County. Docket No: 94-2-24002-1. Date filed: 08/18/95. Judge signing: Hon. Harriett M. Cody.

PER CURIAM -- This dispute concerns two Vashon Island property owners (the Hitchcocks) and Heights Water District. Although the Hitchcocks' property is within the water district's boundaries, Heights Water refused to supply them with water because it lacked capacity. The Hitchcocks sued in contract, arguing that Heights promised to provide water to those within the district and they are third party beneficiaries of that promise. The Hitchcocks find Heights' promise to supply water in three documents: (1) a King County ordinance under which Heights accepted "distribution responsibility" for the entire district, (2) Heights' by-laws, which establish a method to calculate the price for a water certificate, and (3) a 1981 letter from Heights promising to include a previous water purveyor's "present services in [Heights'] distribution." As a matter of law, we hold that these documents do not promise future property owners that Heights will supply water regardless of availability. Nor do we find merit in the other assignments of error. Consequently, we affirm the trial court's summary judgment order dismissing the complaint.

FACTS

Towards the northern end of Vashon Island's east shore is an area called Dilworth. In that area, SW Hawthorne Lane (also known as 80th Pl. SW) runs north/northwest, close to Puget Sound. And in times past, two different purveyors provided water to property owners. The Loes Water Addition served the area close to the sound; Dilworth Point Water Association served some upland residents. Both purveyors were small, and, over time each had trouble maintaining quantity and quality.

As a result, a resident within the Loes boundary requested that Heights Water, a large adjacent water company, supply him with water. And in 1976 Heights Water invited all property owners along SW Hawthorne Lane to participate in a capital improvements project to supply water. Most property owners participated; a few remained on the Loes system. Heights Water and those Loes residents who chose to participate installed the necessary piping underneath all of Hawthorne Lane, and the water flowed.

Later, Heights Water expanded again -- this time to homes formerly within Dilworth Point Water Association's boundaries. When Heights Water submitted its comprehensive plan for approval by the King County Council in 1981, it proposed to assume source and distribution responsibility for Dilworth Point Water Association customers. By ordinance, the council approved the proposal, noting that Dilworth Point "cannot provide an adequate healthful supply of water to its customers." *fn1 It was effective immediately because "the Dilworth Point system is presently dry. . ." *fn2 Nevertheless, the Council expressed concerns with Heights Water's existing source capacity, distribution facilities, and whether it could pay for improvements necessary to meet "the projected increase in demand." *fn3 Heights Water was soon unable to meet burgeoning demand. It had difficulty satisfying state regulations requiring 800 gallons per residential connection per day. By May 1990, Heights Water stopped issuing certificates of water availability; yet property owners could not obtain building permits without one. Instead, Heights maintained a file of requests for new service. It issued availability certificates as capacity allowed, on a first come first served basis. Marilyn Kleyn, whose property was within the area formerly served by the Dilworth Point Water Association, received a certificate in June 1991. But she didn't seek a building permit and the certificate expired one year later in June 1992. This expiration appears on the form certificate provided by King County and issued by Heights Water: "This certification shall be valid for one year from date of signature."

Around the same time that Kleyn's certificate expired, Herta Peterson, who earlier chose to remain on the Loes system (rather than paying to join the Heights extension), gave her property to the Hitchcocks (who are her daughter and son in law). Wanting to remodel, but lacking water capacity because the Loes system was inadequate, the Hitchcocks wrote to Heights Water in 1993, asking to be put on the list for water service. Heights did not issue the Hitchcocks a water availability certificate because it had no excess capacity.

The Hitchcocks' remodeling plans hit another snag -- their property wasn't suitable for a septic drain field. So in February 1994, they purchased Marilyn Kleyn's property, which was upland from the property which Herta Peterson had given them. Still, King County rejected the Hitchcocks' permit application, in part because they lacked adequate water.

The Hitchcocks sued Heights Water in fall 1994. First, they allege that Heights must supply the Kleyn lot with water because it assumed source and distribution responsibility for the Dilworth Point Water Association customers. In this regard, the Hitchcocks argue that they are third party beneficiaries to the King County ordinance authorizing Heights Water to supply Dilworth customers. Second, as regards the lot acquired from Herta Peterson, the Hitchcocks contend that the presence of Heights' water pipes "amounts to an implied contract to furnish water to the lot owners." The trial court found no disputed material facts, and granted Heights Water summary judgment.

Discussion

The legislature has given counties the power to construct, operate, and maintain water systems. *fn4 This grant of authority allows each county "to provide for" systems of water supply. *fn5 Of course every county should encourage public and private water supply systems to ensure the public has enough clean water. *fn6 Still, each county is given plenary authority to decide the how and when of water supply. Admittedly, the State Board of Health has responsibility and concomitant power relating to the quality of drinking water. *fn7

A.

THIRD PARTY BENEFICIARY CAUSE OF ACTION

King County exercises its water supply power by authorizing public and private entities to obtain and distribute water. *fn8 Those entities must adopt comprehensive plans that the county must approve; plans must be updated every five years. *fn9 A plan must address population projections, potential water sources to serve future residents, capital needs, and construction schedules to meet projected needs. *fn10 Under these provisions (or earlier versions), the King County Council approved the Heights Water comprehensive plan in 1981. Its approval, however, did not endorse "the adequacy of existing facilities, which are not adequate to provide service for the land use density exemption from one dwelling unit per 2.5 acres." *fn11 Consequently, the Council required Heights Water to report on how to increase water sources to meet minimum standards, and how to implement planned system improvements. *fn12 That ...


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