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Thurston County Rental Owners Association v. Thurston County

February 21, 1997


Appeal from Superior Court of Lewis County. Docket No: 92-2-00799-0. Date filed: 01/13/95. Judge signing: Hon. David R. Draper.

Petition for Review Denied July 8, 1997,

Authored by Elaine M. Houghton. Concurring: Carroll C. Bridgewater, David H. Armstrong.

The opinion of the court was delivered by: Houghton

HOUGHTON, C.J. -- Thurston County Rental Owners Association (the Association) challenged Thurston County's (the County) permit system for on-site septic tank systems, arguing that: (1) the County lacks authority to require the permits and impose the fees; (2) the County has spent the revenue from the fees in an unlawful or unconstitutional manner; (3) the permit program violates due process and equal protection rights under the federal and state constitutions; and (4) the County's inspection program amounts to an unconstitutional search. The trial court upheld the permit system. We affirm.


About 57 percent of Thurston County residents use an on-site septic system for sewage disposal. The County estimates that between 32,000 and 37,000 septic systems are currently in use within Thurston County. County residents rely almost exclusively upon ground water for drinking and other domestic uses. Failing septic systems can discharge untreated effluent, contaminating ground water and surface water. Untreated sewage can also contaminate shellfish and other marine animals.

In June 1990, the Thurston County Board of Health adopted a set of rules and regulations governing sewage disposal (Ordinance). Ordinance Section 10.4 requires anyone building a new septic system to obtain a construction permit. Ordinance Section 10.5 requires anyone repairing an existing septic system to obtain a repair permit.

Ordinance Section 10.6 requires septic system owners to obtain operation permits in order to use their systems. The Ordinance requires operation permit holders to record "[a] covenant showing the existence of the Operational Permit" with the county auditor. Operation permits are valid for no more than five years and are typically issued for a four-year period.

Although the County intends to eventually require all system owners to obtain operation permits, it currently lacks the resources to implement this plan all at once. As part of its plan to phase-in the permit system, the County requires system owners to obtain operation permits at "times of opportunity." Under the Ordinance, operation permits are required: (1) for any new system; (2) for any system repair or expansion; (3) for any sale of property with an existing unpermitted system; and (4) for any system located in a designated Geologically Sensitive Area. Owners must also obtain permits when required by the health officer.

The Ordinance requires that applicants pay fees for each of the specified permits. The fee for a construction permit is $70 and the fee for an operation permit is $40. Renewing an expired operation permit requires payment of a $40 renewal fee. Additionally, operation permit holders are assessed an annual $30 fee for water quality monitoring.

The County uses the revenue from the operation permit fees to offset its administrative costs in issuing the permits and to fund enforcement and inspections. The County maintains that the cost of issuing the permits exceeds the revenue from the fees. The County is currently holding all revenue from the water quality monitoring fees pending the outcome of this appeal. The County intends to use this revenue to fund ground and surface water monitoring in order to identify failing septic systems. The County also contends that the revenue from these fees is insufficient to cover the cost of its monitoring efforts.

The Association filed a lawsuit claiming that the County lacks the authority to impose the disputed fees. The Association also sued under 42 U.S.C. sec. 1983, claiming that the Ordinance violates various provisions of the state and federal constitutions. The trial court upheld the Ordinance and entered summary judgment of dismissal in favor of the County.

The Association appeals.


An appellate court reviews a trial court's grant of summary judgment de novo, placing itself in the position of the trial court and considering the facts in a light most favorable to the nonmoving party. Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wash. 2d 337, 341, 883 P.2d 1383 (1994). Whereas here, the defendant is the moving party, summary judgment of dismissal is appropriate if the defendant meets its initial burden of showing the absence of any issue of material fact, and the plaintiff fails to produce evidence sufficient to establish the existence of each essential element of its claim. CR 56(e); Buttelo v. S.A. Woods-Yates Am. Mach. Co., Inc., 72 Wash. App. 397, 400, 864 P.2d 948 (1993)(citing Young v. Key Pharmaceuticals Inc., 112 Wash. 2d 216, 225, 770 P.2d 182 (1989)). In making its responsive showing, the plaintiff cannot rely upon allegations made in its pleadings, but instead must respond with affidavits setting forth specific facts showing a genuine issue for trial. CR 56(e); Young, 112 Wash. 2d at 225-26.

Police Power

The Association contends that the County lacks authority to impose the disputed fees. Counties may, under their general police powers, "make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." Const. art. XI, sec. 11. Here, the County has direct legislative authority to regulate private sewage disposal systems. RCW 70.05.060; Ford v. Bellingham-Whatcom County Dist. Bd. of Health, 16 Wash. App. 709, 712, 558 P.2d 821 (1977). Counties may not, however, impose taxes under general police powers. Covell v. City of Seattle, 127 Wash. 2d 874, 878, 905 P.2d 324 (1995). Whether the County has the authority to impose the disputed fees depends upon whether they are taxes or regulatory fees.

The Supreme Court identified three factors to be considered in determining whether a charge imposed by a governmental entity is a tax or a regulatory fee: (1) whether the primary purpose is to raise revenue or to regulate; (2) whether the money collected is spent on non-regulatory purposes; and (3) "whether there is a direct relationship between the fee charged and the service received by those who pay ...

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