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Mount Spokane Skiing Corp. v. Spokane County

April 17, 1997


Appeal from Superior Court of Spokane County. Docket No: 95-2-06334-3. Date filed: 05/02/96. Judge signing: Hon. Robert Austin.

Order Granting Motion to Publish May 7, 1997.

Authored by Frank L. Kurtz. Concurring: John A. Schultheis, Philip J. Thompson.

The opinion of the court was delivered by: Kurtz

KURTZ, J. Mount Spokane Ski Corporation appeals the trial court order on summary judgment dismissing all claims, alleging the trial court erred for the following reasons: (1) the Mount Spokane Public Development Authority (Authority) is invalid because Spokane County (County) lacked statutory authority to create it, it was not created for a public purpose and the County failed to introduce evidence at the hearing prior to passing the resolution; (2) creation of the Authority violates the lending of credit prohibition in the state constitution; (3) creation of the Authority is an unlawful delegation of power by the county commissioners; (4) creation of the Authority unlawfully allows the County to engage in unauthorized actions; (5) creation of the Authority violates the uniformity of government provisions of the state constitution; and (6) the statute amending the public development authority statute is invalid because it violates the constitutional prohibition against multiple subjects. We affirm.


In 1976, Mount Spokane Skiing Corporation (Spokane Skiing) entered into an exclusive 20-year agreement with the State Parks and Recreation Commission to operate a sports, recreation, and ski area in Mount Spokane State Park. Mount Spokane State Park is owned by the state, but Spokane Skiing holds a possessory interest in the ski lifts and other improvements in the concession area. Spokane Skiing evidently operated the ski concession without significant criticism until 1990. That year, the Mount Spokane 2000 Study Group was formed for the purpose of enhancing ski facilities at the park. A consultant hired by the State Parks and Recreation Commission to review operation of the ski concession concluded the quality of service was substandard.

In September 1995, the Board of Spokane County Commissioners held a public meeting to discuss creation of a public corporation to operate the facility at Mount Spokane State Park. Members of Mount Spokane 2000 expressed support for creating such a corporation, while Spokane Skiing's attorney voiced opposition to the idea. On October 3, the Board adopted Resolutions No. 95-1121 and 95-1122 which created the Public Development Authority, authorized its charter and by-laws and named its initial board of directors. A majority of the Authority's board members are directors or members of Mount Spokane 2000.

Two weeks after the Authority was created, Spokane Skiing filed the present action seeking a declaration that the Authority is an illegal entity and that RCW 35.21.730 is unconstitutional, and asked for an injunction restraining the Authority from competing for the ski concession in Mount Spokane State Park. The trial court granted summary judgment in favor of the County and the Authority.


Spokane Skiing contends the authority of the county commissioners is limited to expressly granted powers and to powers necessarily implied in or incident to the powers expressly granted, along with the powers essential to the declared purposes of the corporation. City of Tacoma v. Taxpayers of Tacoma, 108 Wash. 2d 679, 695, 743 P.2d 793 (1987). RCW 35.21.730 originally was enacted to give authority to cities and counties to create public corporations to participate in federally assisted programs addressing the living conditions in urban areas. Laws of 1974, Ex. Sess., ch. 37. At that time, revenue sharing programs dealt with living conditions in urban areas. In 1985, this legislation was amended due to diminishing federal funds and because it was necessary to enable the public corporation to issue revenue bonds in order to raise revenues. As amended, RCW 35.21.730 provides that public corporations may only be created in order "to improve the administration of authorized federal grants or programs, to improve governmental efficiency and services, or to improve the general living conditions in the urban areas of the state, any city, town or county . . . ."

Spokane Skiing argues that the operation of a ski area does not improve the administration of federal grant funds, nor is it a recognized governmental function. In Spokane Skiing's opinion, the operation of the ski area has nothing to do with the improvement of the general living conditions in the urban areas of the state because the ski area is not located within an urban area. Because the Authority fails to satisfy any of the stated purposes set forth in RCW 35.21.730, Spokane Skiing contends it is illegally created.

As additional grounds, Spokane Skiing states the Authority fails to meet all the requirements set forth for public authorities under RCW 35.21.730(4). Under that provision, the Authority must (1) administer and execute federal grants or programs; (2) receive and administer private funds, goods or services for any lawful public purpose; (3) and perform any lawful public purpose or function. Because these elements are connected with the word "and," according to Spokane Skiing, a public authority must perform all three functions to be valid.

Moreover, Spokane Skiing argues the Authority was not created for a public purpose. Government action and expenditures must further public, not private, interests. In re Marriage of Johnson, 96 Wash. 2d 255, 258-59, 634 P.2d 877 (1981). An action or expenditure is for a public purpose when it confers a benefit of reasonably general character to a significant part of the public. United States v. Town of North Bonneville, 94 Wash. 2d 827, 621 P.2d 127 (1980). Spokane Skiing believes the creation of the Authority is for the private purpose of empowering the Mount Spokane 2000 group with county authority to compete with a particular private enterprise.

Finally, Spokane Skiing argues that in creating the Authority, the commissioners acted in an arbitrary and capricious manner. It points to the lack of evidence substantiating a public need justifying creation of the Authority. The commissioners took no testimony, Spokane Skiing notes, other than from counsel for Mount Spokane 2000.

Standard of Review. This court reviews an order of summary judgment de novo engaging in the same inquiry as the trial court. RAP 9.12; Wilson v. Steinbach, 98 Wash. 2d 434, 656 P.2d 1030 (1982). Summary judgment is appropriate if the parties' pleadings, affidavits, and depositions establish there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).

The interpretation of a statute is solely a question of law and within the conventional competence of the court. American Legion Post No. 32 v. City of Walla Walla, 116 Wash. 2d 1, 5, 802 P.2d 784 (1991). The interpretation of Washington constitutional provisions is also a question of law. State ex rel. Humiston v. Meyers, 61 Wash. 2d 772, 777, 380 P.2d 735 (1963).

A statute is presumed constitutional and a challenging party has the burden of establishing beyond a reasonable doubt the statute is unconstitutional. Leonard v. City of Spokane, 127 Wash. 2d 194, 197-98, 897 P.2d 358 (1995). When the constitutionality of a statute is attacked, it is the duty of the court to construe the statute so as to uphold its constitutionality. State v. Browet, Inc., 103 Wash. 2d 215, 219, 691 P.2d 571 (1984).

The interpretation of a municipal enactment is a question of law. Ball v. Smith, 87 Wash. 2d 717, 722-23, 556 P.2d 936 (1976). Municipally enacted law is subject to the same rules of construction as statutes. World Wide Video, Inc. v. City of Tukwila, 117 Wash. 2d 382, 392, 816 P.2d 18 (1991). If stated facts justifying a resolution can be reasonably conceived, such facts should be presumed to exist and the resolution will be presumed to have been passed in conformity with those facts. Silver Shores Mobile Home Park, Inc. v. City of Everett, 87 Wash. 2d 618, 624, 555 P.2d 993 (1976). "If possible, an enactment must be interpreted in a manner which upholds its constitutionality." City ...

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