Covell v. City of Seattle

Utter, J.*

(dissenting) — While I largely agree with the majority’s articulation of the law concerning the differentiation between a tax and a regulatory fee, I cannot agree with its application of that law in this case. It ignores the careful distinctions we developed in Teter v. Clark County, 104 Wn.2d 227, 704 P.2d 1171 (1985) and Hillis Homes, Inc. v. Snohomish County, 97 Wn.2d 804, 650 P.2d 193 (1982) (Hillis Homes I), and unnecessarily confuses this important area of law.

I

The majority is correct in stating that whether a charge is a tax or a regulatory fee depends upon three factors:

[ 1] [whether] the primary purpose of the charges is to raise revenue, rather than to regulate ... [2] whether the money collected must be allocated only to the authorized regulatory *893purpose . . . [and] [3] whether there is a direct relationship between the fee charged and the service received by those who pay the fee or between the fee charged and the burden produced by the fee payer . . . [although the fee need not be] individualized according to the benefit accruing to each fee payer or the burden produced by the fee payer.

Majority at 879 (citations omitted). These factors, however, do not support the majority’s conclusion that Seattle’s street utility charge is a tax rather than a regulatory fee.

Enactments of the state Legislature concerning finances carry a strong presumption of constitutionality. Petitioners bear a heavy burden to demonstrate the contrary. See Department of Ecology v. State Fin. Comm., 116 Wn.2d 246, 253, 804 P.2d 1241 (1991). The same rule applies to city ordinances. Brown v. Yakima, 116 Wn.2d 556, 559, 807 P.2d 353 (1991). If a state of facts justifying an ordinance can reasonably be conceived, such facts will be presumed to exist and the ordinance will be presumed to have been passed in conformity with those facts. Silver Shores Mobile Home Park, Inc. v. Everett, 87 Wn.2d 618, 624, 555 P.2d 993 (1976). "If possible, an enactment must be interpreted in a manner which upholds its constitutionality.” Tacoma v. Luvene, 118 Wn.2d 826, 841, 827 P.2d 1374 (1992) (citing State v. Dixon, 78 Wn.2d 796, 804, 479 P.2d 931 (1971)). Thus, the analysis in this case must begin with a presumption that Seattle’s street utility charge is constitutional, that is, a presumption that the charge is a regulatory fee rather than a tax.

In evaluating whether a charge is a tax or a fee, we are not limited to the language of the ordinance or statute only. To assess whether the charge is imposed pursuant to a regulatory scheme, we may look to the context in which the legislation operates. Margola Assocs. v. Seattle, 121 Wn.2d 625, 637-38, 854 P.2d 23 (1993).

The charges at issue in this case bear one of the hallmarks of regulatory fees because they are manifestly imposed pursuant to a regulatory scheme. The City is authorized to use the moneys collected only after extensive *894planning and development of a specific transportation program, which includes fiscal planning and coordination with the local and regional land use plans, and after considering the effects of anticipated growth in the planning area. RCW 82.80.070. Moreover, the moneys collected may be used only to advance that regulatory purpose and may not be diverted into the general treasury.

(2) The local option transportation revenues shall be expended for transportation uses consistent with the adopted transportation and land use plans of the jurisdiction expending the funds and consistent with any applicable and adopted regional transportation plan for metropolitan planning areas.
(3) Each local government with a population greater than eight thousand that levies or expends local option transportation funds, is also required to develop and adopt a specific transportation program . . .

RCW 82.80.070 (emphasis added). With respect to use of revenues, the statute specifies:

(1) The proceeds collected pursuant to the exercise of the local option authority of RCW 82.80.010, 82.80.020, 82.80.030, and 82.80.050 (hereafter called "local option transportation revenues”) shall be used for transportation purposes only, including but not limited to the following: The operation and preservation of roads, streets, and other transportation improvements; new construction, reconstruction, and expansion of city streets, county roads, and state highways and other transportation improvements; development and implementation of public transportation and high-capacity transit improvements and programs; and planning, design, and acquisition of right of way and sites for such transportation purposes.

RCW 82.80.070 (emphasis added); see also RCW 82.80.050.

The majority relies on Hillis Homes I in support of its conclusion that the charges at issue are taxes rather than regulatory fees. That case, however, bears only a superficial similarity to this case, insofar as the charges imposed there, as here, raised monies which ultimately inured to *895the public benefit. In Hillis Homes I, county ordinances required developers to pay for general public services such as waste disposal, road paving, fire protection, schools and sheriffs services. Although the fees collected were to be deposited in a special fund, this court concluded the fees were taxes because the ordinances authorizing the fees were not regulatory in nature; they did not seek to use the fees to regulate the subdivisions. Hillis Homes I, 97 Wn.2d at 810. The majority’s attempt to liken Hillis Homes I to the case at bar is ultimately unavailing because the charges were not imposed primarily to further a general regulatory scheme.

The case before us bears a closer resemblance to two cases in which we concluded the charge at issue was regulatory, Teter and Hillis Homes, Inc. v. Public Util. Dist. 1, 105 Wn.2d 288, 714 P.2d 1163 (1986) CHillis Homes II). In Teter, a county and city created a storm and surface water department to handle drainage in a particular basin. Acting pursuant to state law, they then imposed charges on owners of the property lying within the drainage basin to fund maintenance and operation of storm water control facilities, such as runoff and erosion control and septic tank regulation. Teter, 104 Wn.2d at 239. The charge was challenged as an unconstitutional tax by property owners who maintained their properties did not receive any special benefit. Teter, 104 Wn.2d at 228. Although the appellants received no "specific” service, we held the charges were regulatory fees which could properly be imposed under the police power. Teter, 104 Wn.2d at 233-34.

In Teter, we treated the storm water systems in the same way as garbage and sewer charges, permitting a government to impose upon a property owner his allocable share of the cost of a public surface water system established to handle runoff from his and others’ land. We deemed the payments "tools of regulation” rather than taxes, because they were designed to offset the public costs associated with private activity. See Teter, 104 Wn.2d at 238-39. We *896explained further that the storm water charges were proper so long as they reflected the user’s allocable share of the costs of the program and were used solely for the costs of that program. Teter, 104 Wn.2d at 233-34. It was, moreover, proper to charge all property that contributed to surface water runoff regardless of any "special,” particularized benefit received. See Teter, 104 Wn.2d at 234, 238.

The Teter opinion also contains some very broad language concerning the scope of the police power under which the city and/or the county may impose a charge. The court stated:

The police power is broad enough to encompass all laws tending to promote the "health, peace, morals, education, good order and welfare of the people. . . . [T]he only limitation upon it is that it must reasonably tend to correct some evil or promote some interest of the state . . .”

Teter, 104 Wn.2d at 233 (quoting Markham Advertising Co. v. State, 73 Wn.2d 405, 421-22, 439 P.2d 248 (1968)). The only restriction we placed on the ability to impose a fee pursuant to that police power is that the charge must be primarily a tool of regulation.

The majority’s attempt to distinguish Teter from the present case is not persuasive. The majority states in regard to the statutes authorizing and implementing Seattle’s street utility charge:

The primary concern of these enactments is with collecting money to pay for street improvements rather than with public health, safety, or welfare. Unlike Teter, the regulatory purpose of the street utility charge is not self-evident.

Majority at 883. On the contrary, it seems quite self-evident that the improvement of city streets is very closely connected to public safety and welfare. At the very least, it "reasonably tend[s] to correct some evil or promote some interest of the state,” as is required by Teter.

In Hillis Homes II, we applied the reasoning of Teter to *897uphold a charge imposed on new customers to raise revenues to pay for systemwide capital improvements to a water system. The charges in that case were calibrated according to the expected water demand of each class of customer: single-family, multi-family, and commercial/ industrial. We reaffirmed the notion articulated in Teter that there need not be a special, in the sense of individualized, benefit before a regulatory fee could be imposed. Different classes of customers could be charged different rates as long as the classifications themselves were reasonable. " '[0]nly a practical basis for the rates is required, not mathematical precision.’ ” Hillis Homes II, 105 Wn.2d at 301 (quoting Teter, 104 Wn.2d at 238).

The categories of charges imposed on residences in this case were adopted by the city council based on the recommendations of the mayor and council staff using criteria authorized in RCW 82.80.050, including "[t]he difference in cost of service to the various users or traffic generators; [and the] location of the various users or traffic generators within the city or town . . . .” RCW 82.80.050. The recommendations for residential rates were the result of trip generation statistics and other materials compiled by the department of engineering. The department concluded from the available data that the average number of vehicle trips generated each day by single-family residences differed from the number generated by multi-family (apartment) residences. See generally Clerk’s Papers at 10-120 (Decl. of Mark Anthony); Clerk’s Papers at 128-31 (Deck of Martha Lester). Duplexes were categorized with single-family residences because they were found to generate more vehicle trips than multi-family apartments. Clerk’s Papers at 128-31.

The relationship between the fee payer and the burden produced by the fee payer is made even stronger in this case by a nexus of necessity. It is necessary for residents to use the city streets in order to get to their homes. The fact that other people will inevitably use the streets is simply an attribute of public streets.

*898Because the charges here bear the indicia of user charges as described in Teter and Hillis Homes II, they should be seen as valid user fees imposed under the City’s police power. The charges are not taxes because they are imposed pursuant to a regulatory scheme which operates the street utility; they generate funds which are allocated to that purpose alone; and since they are designed to offset the proportionate share of impact on the streets caused by residents of and visitors to housing, there is a direct, although not particularized, relationship between the rate burden and the burden on the streets produced by those who pay the rates.3 See RCW 82.80.050.

II

I must also take issue with the majority’s discussion of legislative intent. This portion of the majority’s opinion is unnecessary and not consistent with this court’s prior decisions.

First, the majority notes that RCW 82.80.050 (the statute authorizing street utility charges) provides that such charges are not to be imposed against owners of property exempt under RCW 84.36.010 — a statute which exempts property belonging to the United States and other governmental bodies from taxation. Majority at 886. The majority then concludes that "[h]ad the Legislature authorized the street utility charge as a regulatory fee, no reference to federal government exemption would have been necessary, since the United States must pay reasonable *899user fees.” Majority at 886-87 (citing United States v. Huntington, 999 F.2d 71, 73 (4th Cir. 1993), cert. denied, 510 U.S. 1109, 114 S. Ct. 1048 (1994)). On the contrary, an equally likely interpretation of this provision is that, had the Legislature authorized the street utility charge as a tax, no reference to the federal government exemption would have been necessary, since it would merely have been redundant. It is entirely possible that the Legislature wished to exempt property owned by the federal government from a regulatory fee, even though it could have imposed it upon the United States if it wished.

Next, the majority states:

ROW 82.80.050 also provides that any ordinance creating a street utility must grant any business a credit against the street utility charge for any commuter or employee tax paid by that business for transportation purposes. Had the Legislature authorized the street utility charges to be imposed as fees, such a credit would have been both unnecessary and inappropriate. Instead, the Legislature quite properly provided that businesses should not be taxed twice to pay for the same purpose.

Majority at 887. Again, it is entirely possible that the Legislature wished to grant an exemption where it was not constitutionally compelled to do so. The majority does not explain why such an exemption would be "inappropriate,” especially in light of the fact that the very same exemption is "quite proper” if the charge is merely characterized as a tax rather than a fee.

The majority then goes on to discuss the titles given to the legislative reports and the final act which contained the authorization for the street utility charges. The fact that the title of an act or a legislative report, which contained provisions for a number of different charges relating to transportation, referred to taxes cannot be dis-positive or, in this case, persuasive. The titles referred to by the majority are short and simple descriptions of the content of the act or report. They are obviously not concerned with the articulation of fine legal distinctions.

*900Additionally, the majority, in support of its conclusion, notes that the summary in the 1990 Final Legislative Report "states that 'four local option transportation taxes’ are authorized: the fuel tax, vehicle registration fees, the commercial parking tax, and the street utility charge.” Majority at 887 (citing 1990 Final Legislative Report at 153). This summary, however, does not support the majority’s argument. The majority provides no evidence that the other three charges authorized by the act are taxes rather than regulatory fees. Thus, it is likely that the term "tax” was used over-inclusively to refer to taxes, fees, and other charges.

Finally, as the majority acknowledges elsewhere in its opinion, this court very clearly decided in Hillis Homes I that the characterization of a charge as a fee or a tax by a government entity is not dispositive. In that case, the counties characterized the charges as fees, but after examining the purpose of the charges, this court determined that they were in fact taxes. See Hillis Homes I, 97 Wn.2d at 808; see also Majority at 880, 885-86.

Whether the Legislature intended the street utility charges to be taxes or fees is obscure. The majority greatly overstates its case when it claims: "That the Legislature authorized street utility charges as taxes, rather than as police power measures, could not be more clear.” Majority at 888. Moreover, as this court found in Hillis Homes I, the characterization of a charge by a governmental entity is largely irrelevant in this context. If it were otherwise, any governmental entity could insulate any charge from the constitutional requirement of tax uniformity merely by calling it a fee.

Governments must be allowed to govern. The Legislature intended to give local governments broad authority to assess street utility charges, and local authorities must be allowed some flexibility in their efforts to implement these fees.

Seattle’s street utility charges meet the criteria for a regulatory fee that this court has established in prior *901cases. I therefore would affirm the trial court’s summary-judgment upholding the validity of Seattle’s street utility charge.4

Dolliver and Guy, JJ., concur with Utter, J. Pro Tern.

Reconsideration denied March 12, 1996.

Justice Robert F. Utter is serving as a justice pro tempore of the Supreme Court pursuant to Const. art. IV, § 2(a) (amend. 38).

Unlike the charges at issue in this case, a tax bears no necessary connection between the person who bears the burden and how or for whose benefit the moneys collected are spent. Gruen v. State Tax Comm’n, 35 Wn.2d 1, 33-34, 211 P.2d 651 (1949), rev’d on other grounds by Washington State Fin. Comm’n v. Martin, 62 Wn.2d 645, 211 P.2d 651 (1963). "Taxes are the enforced proportional contributions from persons and property, levied by the state by virtue of its sovereignty for the support of government and for all public needs.” 1 Thomas M. Cooley, Taxation § 1 at 61 (4th ed. 1924); see State ex rel. Nettleton v. Case, 39 Wash. 177, 182, 81 P. 554 (1905) ("Taxes are defined to be 'burdens or charges imposed by legislative authority on persons or property, to raise money for public purposes, or, more briefly, "an imposition for the supply of the public treasury.” ’ ”)) (quoting American and English Encyclopedia of Law 578 (2d ed. 1905)); see also Hillis Homes I, 97 Wn.2d at 809.

Because only "successful” litigants are entitled to an award of attorney fees, see Leischner v. Alldridge, 114 Wn.2d 753, 756-57, 790 P.2d 1234 (1990), and even then, only if there is an immediate common fund from which attorney fees can be drawn, Miotke v. Spokane, 101 Wn.2d 307, 339, 678 P.2d 803 (1984), I would also deny Petitioners such fees.