[No. 59002-2-I. Division One. August 27, 2007.]
[1] Administrative Law — Judicial Review — Exhaustion of Administrative Remedies — Necessity — Declaratory Action. A party aggrieved by an administrative action is not required to exhaust administrative remedies before seeking declaratory relief in court. [2] Utility Services — Sewers — Service Outside Municipal Boundaries — Necessity — Statutory Provisions. RCW 35.67.310 obligates a city to provide sewer service to property outside of its corporate boundaries if the city is the exclusive supplier of sewer service in the region. [3] Utility Services — Sewers — Service Outside Municipal Boundaries — Exclusive Provider — What Constitutes — Septic Systems Allowed Only on Limited and Temporary Basis. For purposes of RCW 35.67.310, which obligates a city to provide sewer service to property outside of its corporate boundaries if the city is the exclusive supplier of sewer service in the region, a city is the exclusive supplier of sewer service to a region if the county authorizes septic systems in the area only on a limited, temporary basis and no other sewer service is available. [4] Utility Services — Sewers — Service Outside Municipal Boundaries — Conditions — Reasonable and Lawful — Necessity. The conditions a city may impose on the provision of sewer service to areas outside of corporate boundaries under RCW 35.67.310 are not necessarily limited to conditions relating to the city's capacity to provide service to the area, but a city may not impose conditions that are unreasonable or otherwise unlawful. [5] Zoning — Municipal Authority — Extraterritorial Enforcement. A municipal corporation may not enforce its zoning ordinances outside of corporate boundaries. [6] Zoning — What Constitutes — "Zoning Ordinance" — Characteristics. The heart of a typical zoning ordinance defines the various districts and the regulations of use, lot size, site coverage, density, height, landscaping, parking, signs, and other matters. [7] Utility Services — Sewers — Service Outside Municipal Boundaries — Conditions — Reasonable and Lawful — Compliance With Land Use Regulations. Mandatory compliance with a city's "land use dimensions," such as use, density, and structure requirements, does not constitute a reasonable and lawful condition of sewer service for purposes of RCW 35.67.310, which authorizes a city to place conditions on the provision of sewer service to property outside of its corporate boundaries. [8] Judgment — Summary Judgment — Partial Summary Judgment — Reversal — Effect — Remaining Issues. In general, all claims raised in an action remain subject to trial upon reversal of a partial summary judgment dismissing a portion of the claims. No rule requires parties to incorporate argument upon every claim raised in the action when a motion for partial summary judgment focuses on only certain specific claims. The party opposing the motion does not waive its other claims simply by filing a cross motion if a favorable ruling on the cross motion would be a predicate for trial on the other claims. Nature of Action: A developer of unincorporated property within a city's potential annexation area whose application to the city for a certificate of sewer availability was denied on the grounds that the proposed development exceeded the density allowed under the city's municipal code sought (1) a declaration that the city could not enforce its density requirement against property outside of its corporate boundaries, (2) a writ of mandamus ordering the city to issue a certificate of sewer availability, and (3) an injunction against the city. Superior Court: The Superior Court for King County, No. 05-2-31151-7, Christopher A. Washington, J., on September 28, 2006, entered a summary judgment in favor of the city. Court of Appeals: Holding that the city's density requirement is not a reasonable and lawful condition that may be imposed on the provision of sewer service to the developer's property and that takings and due process claims raised by the developer remain to be tried, the court reverses the judgment and remands the case for further proceedings. William H. Williamson- (of Williamson Law Office) and Eric R. Hultman- (of Hultman Law Office), for appellants. Zanetta L. Fontes- (of Warren Barber & Fontes, PS), for respondent. ¶1 ELLINGTON, J. — Where a municipality is the exclusive provider of sewer service to property outside its borders, it may not refuse to provide that service, although it may impose reasonable and lawful conditions before doing so. Reasonable and lawful conditions do not include mandatory compliance with the residential density limits in the municipality's comprehensive land use plan, even where the proposed service location is within the municipality's potential annexation area. Such a requirement amounts to zoning, and a municipality may not zone property outside its borders. We reverse and remand. BACKGROUND ¶2 MT Development owns three parcels of land covering almost four acres in the urban growth area of unincorporated King County. County zoning allows eight dwellings per acre. ¶3 The city of Renton is the provider of sewer service for the property. Any plat application filed with the county must be accompanied by a certificate of sewer availability. The property lies within the city's potential annexation area. The city's comprehensive plan designates the property for low density development of four dwellings per acre. ¶4 A previous owner of the property applied for a certificate of sewer availability for one parcel, which the city granted "subject to annexation to the city and following city zoning and land use requirements." Clerk's Papers at 712. The previous owner agreed to these conditions, and the certificate was granted. The owner also petitioned for annexation of the remaining two parcels. ¶5 The city subsequently amended its municipal code to require adherence to the city's comprehensive plan as a condition of providing sewer service to properties in its potential annexation area: Sewer service to properties outside the City's corporate limits will be permitted when the property is within the City's adopted Potential Annexation Area (PAA), approved sanitary sewer service boundary, or within a special assessment district of the City. Sanitary sewer service will only be granted to those parcels whose proposed connection(s) meet(s) the following three (3) Renton adopted land use dimensions: a. Use allowed under adopted general land use category, i.e., residential, commercial, office, or industrial; b. Allowed residential density within adopted land use category; and c. Allowed structure type and scale within adopted land use category, i.e., number of residential units per building. RENTON MUNICIPAL CODE 4-6-040(C)(1) (emphasis added). ¶6 After MT acquired all three parcels, it applied for a certificate of sewer availability for the remaining two. The city denied this application because MT's proposed development called for eight dwellings per acre, which was consistent with county zoning but exceeded the density allowed in the city's land use plan. Thereafter, the county denied MT's plat application for want of a sewer certificate. A few days later, the King County Boundary Review Board approved the city's annexation of the land. ¶7 MT filed this action against the city and the boundary review board, seeking a judgment declaring the city's ordinance unenforceable, a writ of mandamus ordering the city to issue the certificate, and an injunction. The annexation process stopped. The city moved for partial summary judgment upholding the ordinance, and MT filed a cross motion for summary judgment. The court granted the city's motion, denied MT's motion, and dismissed all of MT's claims against the city. By stipulation of the parties, the boundary review board was dismissed. ¶8 We apply the usual standard for review of summary judgment. ANALYSIS ¶9 The question presented is whether the city of Renton may, as a condition of providing sewer service outside its borders, require compliance with its comprehensive plan. ¶10 MT makes the principal arguments that an exclusive provider of sewer service may deny service outside its borders only for utility-related reasons, such as lack of capacity, and that requiring compliance with the city's comprehensive plan amounts to zoning, which the city may not impose on property beyond its borders. MT also seeks remand to develop a record on its claims of regulatory takings and violation of due process. ¶13 As a threshold matter, the city contends it is not the exclusive supplier of sewer service to MT's parcels because "septic might be available." Clerk's Papers at 727. But King County authorizes septic systems in its urban growth area only on a limited, temporary basis. ¶15 Municipalities may not, however, impose conditions that are unreasonable or otherwise unlawful. In Yakima County, a further condition that property owners promote annexation was held improper because it effectively required an unknowing waiver of First Amendment speech rights. Id. at 395. In Nolte v. City of Olympia, 96 Wn. App. 944, 952-53, 955, 982 P.2d 659 (1999), a condition requiring payment of impact fees was held unlawful because the assessment violated other provisions of state law. ¶17 The city contends it has done no more than comply with the Growth Management Act, chapter 36.70A RCW, which mandates that cities accommodate anticipated urban growth in their comprehensive plans. We presume the city relies upon the following provision of the act: [T]he county and each city within the county shall include [in their comprehensive plans urban growth] areas and densities sufficient to permit the urban growth that is projected to occur in the county or city for the succeeding twenty-year period . . . . Each urban growth area shall permit urban densities and shall include greenbelt and open space areas. . . . An urban growth area . . . shall permit a range of urban densities and uses. . . . Cities and counties have discretion in their comprehensive plans to make many choices about accommodating growth. . . . . An urban growth area designated in accordance with this section may include within its boundaries urban service areas or potential annexation areas designated for specific cities or towns within the county. RCW 36.70A.110(2), (7). A comprehensive plan provides an "overall guide for development." Cougar Mountain Assocs. v. King County, 111 Wn.2d 742, 756, 765 P.2d 264 (1988). The city claims it has merely planned for urban growth by establishing land use designations for its potential annexation area, and that no actual zoning occurs until annexation is complete. ¶18 This argument ignores the effect of the condition. " 'The heart of a typical zoning ordinance defines the various districts and the regulations of use, lot size, site coverage, density, height, landscaping, parking, signs and other matters.' " Id. (quoting RICHARD SETTLE, WASHINGTON LAND USE AND ENVIRONMENTAL LAW AND PRACTICE § 2.3(a) (1983)). The city's sewer service ordinance does not merely implement the Growth Management Act's planning requirements. It imposes immediate use, density, and structure requirements upon property outside the city's boundaries as a condition of receiving a necessary service available only from the city. The ordinance thus regulates use of the property and has the effect of zoning. Because the city's zoning authority ends at its borders, the requirement that applicants for sewer service outside city limits must comply with the city's "land use dimensions" is unlawful. ¶19 MT argues that whatever decision we reach as to the lawfulness of the service condition, remand is required to determine whether the condition is a regulatory taking or violation of substantive due process. The city seeks an award of sanctions for violation of RAP 2.5, contending that MT failed to raise these issues below. ¶21 We reverse and remand for further proceedings consistent with this opinion. AGID and DWYER, JJ., concur.