         IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



RAY E. GABELEIN and
LAURIE J. GABELEIN,                               No. 70527-0-
husband and wife,
                                                  DIVISION ONE
                     Respondents,


                                                  PUBLISHED OPINION
DIKING DISTRICT NO.1 of ISLAND
COUNTY of the State of Washington,                FILED: June 30. 2014

                     Appellant.

       Spearman, C.J. — Diking District No. 1 of Island County raises money to

maintain its dikes and drainage facilities through annual assessments on benefited

property owners within the District. Property owners Raymond and Laurie Gabelein filed

suit against the District to challenge the methodology by which the District developed its

2012 benefit assessment roll and calculated the drainage assessment against their

property. The trial court ruled that the District failed to properly construe and apply

chapter 85.18 RCW in determining the assessment methodology underlying its 2012

benefit assessment roll and granted summary judgment in favor of the Gabeleins. The

trial court also awarded attorney fees to the Gabeleins based on a finding that the

District committed prelitigation misconduct. We affirm.
No. 70527-0-1/2


                                                 FACTS

        Diking District No. 1 of Island County (District) was established in 1914 to

construct and maintain a system of dikes and related facilities, pursuant to RCW

85.05.090. At that time, the Island County Superior Court determined that 460 acres of

land within the District would be benefited by the dikes. Assessments were allocated

according to benefits received per acre.1 In 1931, the District constructed a drainage

system, with construction and maintenance assessments based on benefits received

per acre, again pursuant to RCW 85.05.090. The District continues to maintain separate

assessment rolls for diking and for drainage.

        In 1951, the Legislature enacted chapter 85.18 RCW, "Levy for Continuous

Benefits - Diking Districts." In 1960, pursuant to chapter 85.18 RCW, the District

changed its method for determining diking benefits "from the acreage of benefited

parcels to the true and fair value of benefited parcels, such that thereafter, levies for

diking assessments were spread over benefited properties within the district in

proportion to the true and fair value of such properties.. .." Clerk's Papers (CP) at 622.

Drainage assessments, however, continued to be levied in proportion to acreage.

        Then, in 1986, the District's three-member Board of Commissioners (Board)

passed a resolution to set drainage benefits pursuant to chapter 85.18 RCW, as it had

for diking benefits 26 years earlier.2 The Board determined that "[t]he continuous base



       1 RCW 85.05.090 provides that the petition to establish a new diking district shall set forth "the
number of acres owned by each landowner, and the maximum amount of benefits per acre to be derived
by each landowner set forth therein from the construction of said proposed improvement...."
          2Specifically, it determined that "the continuous base benefits which each of the properties on the
roll of the district are receiving and will receive from the continued operation and functioning of the
drainage improvements of the district are equal to 100% of the true and fair value of such property in
money." CP at 627.
No. 70527-0-1/3


benefits which each of the properties (including land and buildings) within the benefited

area of the district are receiving and will receive from the continued operation and

functioning of the drainage improvements of the district are equal to 100% of the true

and fair value of such property in money. . . ." CP at 625. It concluded that "[t]he cost of

continued functioning of the district should be paid through levies of dollar rates made

and collected according to chapter 85.18 RCW against the land and buildings protected

by the district's drainage improvements, based upon the determined base benefits

received by such land and buildings as set forth above." CP at 626. The 1986 resolution

expressly stated that the new assessment roll would include lots on the waterfront side

of Sunlight Beach Road, which over the years had become a beachfront community

with high property values.

        Meanwhile, residential and commercial development within the watershed

contributed to increasing amounts of runoff from impervious areas. By 2004, the

drainage system was at maximum capacity. Therefore, in 2004, the District entered into

a contract to purchase a new pump, and the Board adopted a five-year assessment to

pay for it. The pump went into operation in 2008. However, the pump was controversial

among the District's residents.

        Citizens in Support of Useless Bay Community, a nonprofit corporation

composed of property owners within the District who opposed the Board's recent

decisions, filed lawsuits against the District in 2009, 2010, and 2011.3 In 2011, the

Island County Superior Court issued a joint ruling on cross-motions for summary

judgment in the 2009 and 2010 lawsuits. The trial court upheld the 2004 pump contract


        3Another pump-related lawsuit, filed against the District in 2008, was apparently dismissed
before the trial court ruled on the merits.
No. 70527-0-1/4


but invalidated the 2008 and 2010 resolutions attempting to resurrect prior base benefit

rolls because the District failed to provide notice and public hearings as required by

statute. Accordingly, the trial court ruled that the challengers' argument that the District's

benefit assessment approach constituted an unconstitutional ad valorem tax was moot

and would not be ripe for adjudication until the District followed the proper process. The

trial court specified that the District must enter "Findings of Fact supported by

competent evidence establishing the actual benefit provided to properties benefited by

[the District's] improvements, which must be measured by the difference in value for

each parcel of property before and after receiving the benefit, if any." CP 386.

          The District appealed. But in February 2012, Board member Ray Gabelein, a

local farmer, was defeated in his bid for re-election by Thomas Kraft, a waterfront

property owner. Kraft joined waterfront property owner John Shepard on the Board.

Kraft and Shepard thus formed a "new majority" of waterfront property owners on the

three-member Board. The 2009 and 2010 lawsuits settled soon thereafter and the

Board withdrew its appeal of the court's rulings.

          In October 2012, the Board adopted a new base benefit roll pursuant to chapter

RCW 85.18. The 2012 Roll utilized a new method for determining drainage continuous

base benefits and apportioning costs among benefited properties. This method was

based on the District's determination that only acreage at or below five feet in elevation

was benefited by District drainage facilities.4 Only 127.77 acres of the District's total

acreage met this criterion. The District then defined drainage "continuous base benefits"


        4 Specifically, the Resolution states that "[t]he acreage of property at or below the five foot
NAVD88 elevation as depicted on the TMI Land Surveying Map dated 5/03/2012, will be used to
apportion the continuous base benefit to such properties within the District afforded such protection." CP
at 765.
No. 70527-0-1/5


for a given benefited parcel based on the following formula: benefited acreage of parcel,

divided by total benefited acreage, multiplied by $1000. The Board then allocated

annual drainage operating costs among benefited properties by multiplying the

continuous base benefit for a given parcel by total operating costs to yield the annual

assessment for that parcel.5

        Ray and Laurie Gabelein own a 60.53 acre parcel of property within the District.

The parcel is enrolled in Washington's "current use" program for farm and agricultural

lands, a program under which property taxes are determined according to the fair

market value of the land as it is currently used, rather than considering its potential for

development. Chapter 84.34 RCW. The Island County Assessor determined that the

total fair market value of the Gabeleins' property is $35,627, based on the three different

categories of land it contains. The driest and most valuable part of the property,

consisting of approximately 27 acres, is designated "summer pasture" worth $34,517.

Two acres are designated "swamp/marsh" worth $800. And the remaining 31 acres are

designated "waste land" so wet it is typically not usable for the majority of the year. This

portion of the property is worth only $310 or $10 per acre.

        The District determined that 25.44 acres of the Gabeleins' parcel are at or below

5 feet in elevation. This equals 20.137% of the total amount of District acreage at or

below 5 feet in elevation. Thus, under the District's new methodology, the continuous

base benefit for the Gabelein parcel is 20.137% x $1000 = $201.37. In other words,




         5 The Board utilized a different criterion in determining which properties were benefited by its
diking facilities: those with 25% or more of their surface area, or improvements thereon, at or below "the
100 year water surface elevation for salt water inundation of 11.98 feet per NAVDD88." CP at 765. It then
apportioned continuous base benefits according to "true and fair value" of the benefited property, rather
than adopting the new method it developed for determining drainage base benefits.
No. 70527-0-1/6


$201.37 of every $1000 in drainage costs were imposed on the Gabeleins' parcel.

Annual estimated drainage operating costs for 2013 are $77,212. The result: an annual

assessment on the Gabeleins' parcel in the amount of 0.20137 x $77,212 = $15,548.

This is nearly half of the parcel's total fair market value of $35,548, imposed based upon

the wettest, lowest-value portion of the parcel.

       In October 2012, pursuant to RCW 85.18.100, the Gabeleins filed a petition for

judicial review of the 2012 Roll. After the District submitted a certified transcript of the

proceedings to be reviewed, the Gabeleins moved for summary judgment. The trial

court granted summary judgment to the Gabeleins. It concluded that (1) the District did

not correctly construe and apply chapter 85.18 RCW in adopting its 2012 benefit

assessment roll; (2) the amount of the annual assessment on the Gabeleins' property

materially exceeds the amount of the drainage continuous base benefits conferred by

the District's drainage facilities; and (3) the amount of the annual assessment on the

Gabeleins' propertyfor drainage continuous base benefits materially exceeds the value

of the only acres that benefit. The trial court also awarded attorney's fees to the

Gabeleins based on the District's pre-litigation misconduct for failing to follow the

language in the 2011 Order. The trial court denied the District's motion for

reconsideration. The District now appeals.

                                        DISCUSSION

       We review an order granting summary judgment de novo, engaging in the same

inquiry as the trial court. Atherton Condo. Apartment-Owners Ass'n Bd. of Dir. v. Blume

Dev. Co., 115 Wn.2d 506, 515-16, 799 P.2d 250 (1990); CR 56(c). RCW 85.18.130

provides that the trial court "shall determine whether the board has acted within its

discretion and has correctly construed and applied the law." A trial court abuses its

                                               6
No. 70527-0-1/7


discretion if its decision is "manifestly unreasonable or based on untenable grounds."

Grandmaster Shenq-Yen Lu v. King County. 110 Wn. App. 92, 99, 38 P.2d 1040 (2002).

Statutory interpretation is a question of law reviewed de novo. Kustura v. Dep't of Labor

and Indus.. 169 Wn.2d 81, 87, 233 P.3d 853 (2010).

       As a preliminary matter, the parties dispute the proper scope of the record on

review. RCW 85.18.110 requires the District to file "its certified transcript containing

such portion of the roll as is subject to review, any written objections thereto filed with

the board by the person reviewing before said roll was adopted, and a copy of the

resolution adopting the roll." The District argues that judicial review pursuant to a writ of

review under chapter 85.18 RCW is limited to the administrative record that was before

the Board when it adopted the 2012 Roll. It contends that the trial court erred in

considering additional materials, and that this court should exclude them. "When the

petition involves allegations of procedural irregularities or appearance of fairness, or

raises constitutional questions, the court may consider evidence outside the record."

Responsible Urban Growth Group v. City of Kent. 123 Wn.2d 376, 384, 868 P.2d 861

(1994). Because the Gabeleins raised constitutional questions, the trial court ruled that

it could consider additional materials. We agree, and consider the entire record on

review.6




        6 The District also relies on Abbenhaus v. City of Yakima. 89 Wn.2d 855, 859-60, 576 P.2d 888
(1978) for the proposition that the record on review should be limited to the record that was before the
Board when it adopted the 2012 Roll. The District is incorrect. Abbenhaus involved a challenge to an
assessment pursuant to chapter 35.44 RCW. The Washington Supreme Court concluded that the 1957
amendments to RCW 35.44.250 were intended to limitjudicial review to the record of the proceedings
before the municipality. Abbenhaus. 89 Wn.2d at 859-60. But RCW 85.18.120 and .130 closely track the
pre-amendment language of RCW 35.44.230. Abbenhaus does not control.
No. 70527-0-1/8



                                Assessment Methodology

       The District adopted the 2012 Roll pursuant to chapter 85.18 RCW. This

legislation, enacted in 1951, declared that "there is a direct relationship ... between the

continuous functioning of [diking and drainage] districts and the fair value of the lands

and buildings thereon...thus afforded protection." RCW 85.18.005. It allows diking

districts to fund the cost of continuous functioning "through levies of dollar rates made

and collected according to this chapter against the land and buildings thus protected,

based upon the determined base benefits received by such land and buildings." RCW

85.18.010. The District is required to "make an estimate of the costs reasonably

anticipated to be required for the effective functioning of such district during the ensuing

year" which "shall be levied by the regular taxing agencies against the base benefits to

the lands and buildings within such district as shown by the then complete roll..." RCW

85.18.160. "Continuous base benefits" are to be determined as follows:

       [T]he board will sit to consider said roll and to determine the
       continuous base benefits which each of the properties thereon are
       receiving and will receive from the continued operation and
       functioning of such district, which shall in no instance exceed one
       hundred percent of the true and fair value of such property in
       money, will consider all objections made thereto or to any part
       thereof, and will correct, revise, lower, change, or modify such roll as
       shall appear just and equitable; that when correct benefits are fixed
       upon said roll by said board, it will adopt said roll by resolution as
       establishing, until modified as hereinafter provided, the continuous
       base benefit to said protected lands and buildings against which will
       be levied and collected dollar rates to provide funds for the
       continuous functioning of said district.

RCW 85.18.030.




                                              8
No. 70527-0-1/9


       The term "continuous base benefit" is not defined in chapter 85.18 RCW, nor

does it appear in any other Washington statute. And there are no reported cases

interpreting the term.

       The District argues that chapter 85.18 RCW does not prescribe any particular

method the Board is required to use to determine continuous base benefits. Rather, it

contends that the Legislature expressly left the determination of continuous base

benefits to its discretion. Thus, although the Board chose to expressly proceed under

chapter 85.18 RCW, it claims to have been "inspired" to create its new drainage

assessment methodology based on chapter 85.38 RCW, "Special District Creation and

Operation." Enacted in 1985, chapter 85.38 RCW provides an alternative method for

existing diking and drainage districts to determine what the statute refers to as "special

assessments," which receive "special benefits" from a special district's operations and

facilities. RCW 85.38.150(1). RCW 85.38.150(3) provides for the establishment of

"assessment zones" in which each zone reflects a different relative ratio or benefit or

use from the special district's facilities. Notably, these zoning determinations are made

not by the special district itself, but rather by the legislative authority of the county where

the special district is located, starting with a preliminary system of assessment prepared

by the county's engineer. RCW 85.38.160. "Special assessments" are then determined

based on the dollar value of benefit per acre or per improvement and the assessment

zone where the property is located. RCW 85.38.150(2). RCW 85.38.160(2) requires that

the special district mail notice to each property owner subject to special assessments:

       The mailed notice shall indicate the amount of assessment on the
       lot or parcel that, together with all other assessments in the system
       of assessment, would raise one thousand dollars. The mailed
       notice shall indicate that this assessment amount is not being
No. 70527-0-1/10


      imposed, but is a hypothetical assessment that, if combined with all
      other hypothetical assessments in the system of assessment,
      would generate one thousand dollars, and that this hypothetical
      assessment is proposed to be used to establish a system or
      systems of assessment for the special district.

On this basis, the Board apportioned the annual drainage budget among benefited

acreage by articulating continuous base benefits as a dollar rate per $1,000 of budgeted

costs. The statute continues:

      Where a special district is currently imposing special assessments and a
      property owner's property is subject to these special assessments, the
      mailed notice to this property owner shall also use the hypothetical
      special assessment in conjunction with the total special assessments
      imposed by the special district in that year to provide a comparison
      special assessment value to the property owner. This notice shall
      indicate that the comparison special assessment value is not being
      imposed, and should be considered for comparative purposes only.

       The trial court did not err in concluding that the Board misconstrued and

misapplied chapter 85.18 RCW in adopting the 2012 Roll. Article VII, section 9 of the

Washington Constitution allows the Legislature to delegate taxing power to all municipal

corporations, including diking districts. Larson v. Seattle Popular Monorail Authority, 156

Wn.2d 752, 757 n.4, 131 P.3d 892 (2006). Unlike general ad valorem taxes, which are

levied for the benefit of the entire taxing district, special assessments for local

improvements inure to the benefit of specific land. Heavens v. King County Rural

Library Dist.. 66 Wn.2d 558, 563, 404 P.2d 453 (1965).

       It is the basic principle and the very life of the doctrine of special
       assessments that there can be no special assessment to pay for a
       thing which has conferred no special benefit upon the property
       assessed. To assess property for a thing which did not benefit it
       would be pro tanto the taking of private property for a public use
       without compensation, hence unconstitutional. Though the right to
       levy special assessments for local improvements is referable solely
       to the sovereign power of taxation, our state Constitution, art. 7, § 9,



                                              10
No. 70527-0-1/11


       expressly limits its exercise to assessments of property benefited, jn
       reShilsholeAve.. 85 Wash. 522, 537, 148 P.781 (1915).

Accordingly, special assessments for special benefits cannot substantially exceed the

amount of special benefits without, to the extent of such excess, amounting to a taking

of private property for public use without compensation. Hargreaves v. Mukilteo Water

Dist.. Snohomish County. 43 Wn.2d 326, 331-32, 261 P.2d 122 (1953). And

"assessments for the public benefit [must] be distributed with substantial equality over

all property of like kind and similarly situated with reference to the subject matter of the

assessment." In re Eighth Ave. Northwest in City of Seattle. 77 Wash. 570, 576, 138

P.10(1914).

       These constitutionally based principles apply broadly to special assessments,

including those for dikes and drainage, regardless of which statute governs the

assessment process:

       Special assessments to pay for local public improvements benefiting
       specific land are of ancient lineage. They have been held valid for the
       construction and improvement of streets, curbs, gutters, sidewalks, and for
       the installation of sanitary and storm sewers, drains, levees, ditches, street
       lighting, and water mains. Rhyne, Municipal Law, p. 717. All such
       assessments have one common element: they are for the construction of
       local improvements that are appurtenant to specific land and bring a
       benefit substantially more intense than is yielded to the rest of the
       municipality. The benefit to the land must be actual, physical and material
       and not merely speculative or conjectural.

Heavens v. King County Rural Library Dist. 66 Wn.2d 558, 563, 404 P.2d 453
(1965).

       Washington's original diking district statutes were sustained against constitutional

challenge based on the proposition that the charge for improvements were to be in

proportion to the benefits accruing thereto, and that no property could be charged in

excess of those benefits. Foster v. Commissioners of Cowlitz County. 100 Wash. 502,


                                              11
No. 70527-0-1/12


512, 171 P.539 (1918); Kadow v. Paul. 274 U.S. 175, 181, 47 S. Ct. 561, 71 L. Ed. 782

(1927) ("[w]hen the operation of [Washington's diking district statute] works uniformly as

against all parts of the assessment district and results in a higher cost of the

improvement, and an increased assessment on all the owners of land who have paid, it

violates no constitutional right of theirs as long as their benefits continue respectively to

exceed their individual assessments." (Citing Orrv. Allen. 248 U.S. 35, 39 S. Ct. 223, 63

L Ed. 109(1918)).

       The District places great emphasis on the fact that it followed statutory notice and

public hearing requirements in the process of adopting the 2012 Roll. It also points to

numerous reports, materials, and documents it relied on in making its determination. But

this does not cure the fundamental problem: there is no evidence that the Gabeleins'

property received any benefit whatsoever. The $15,548 assessment on the Gabeleins'

property was based on the 25.44 acre portion which lies at or below 5 feet. Most of this

acreage is designated "waste land" with a fair market value of $10 per acre, even with

the District's drainage improvements. It is difficult to understand how property that the

Island County Assessor describes as "waste land" that is "even wetter than wetlands" is

receiving any benefit at all, let alone a benefit worth $15,548. (CP at 657-58) These

property value determinations were based on the Gabelein parcel's enrollment in

Washington's current use program pursuant to chapter 84.34 RCW. The District is not

free to ignore them in an attempt to justify levying an assessment based on the value of

acres that plainly do not benefit from its drainage facilities.

       The District claims that chapter 85.18 RCW gives the Board discretion to be

"inspired" by chapter 85.38 RCW in determining continuous base benefits. We disagree.



                                              12
No. 70527-0-1/13


The Board's reliance on chapter 85.38 RCW to develop a methodology for determining

continuous base benefits is problematic for a number of reasons. First, as used under

RCW 85.38.160(2), the special assessment per $1000 of budgeted costs is

hypothetical. It is designed solely to provide notice to property owners for comparative

purposes. But here, the Board adopted the methodology to determine the actual

continuous base benefits. Second, the methodology is misleading because it nowhere

indicates the actual amount of the assessment, which, as in this case, will likely be

several times the amount of the continuous base benefit. Third, as noted above, under

RCW 85.38.160(2), the system of assessment is determined by a disinterested party,
the county engineer, whereas here, the Board, consisting of individuals with a financial
interest in the outcome, determines the system of assessments.7 We cannot conclude

that chapter 85.18 RCW grants the Board discretion to pick and choose among those
provisions ofchapter 85.38 RCW it finds favorable, without also being constrained by its
restrictions. The legislative intentions ofeither statutory scheme are not well served by
the Board cherry picking those provisions of chapter 85.38 RCW which suit its purposes

but ignoring those provisions which do not.

       Moreover, the Board's methodology does not determine benefits to the assessed

properties in any meaningful way. "Continuous base benefits" do not necessarily reflect
the amount of money to be collected from protected property, but rather serve as the
base for apportionment of the annual budget across benefited properties. Chapter 85.18
RCW describes "continuous base benefits" as the basis upon which to levy "dollar rates



        7Although not raised by the parties, we note that RCW 85.18.180 prohibits the Board from using
"the processes provided for raising revenue under any other law,. .." with certain exceptions not relevant
here. Thus, the Board's reliance on chapter 85.38 RCW may be misplaced in any event.

                                                    13
No. 70527-0-1/14


to provide funds for the continuous functioning of said district," with the requirement that

continuous base benefits not exceed the true and fair value of the property. Instead of

determining the benefits accruing to each parcel, the Board essentially created an

assessment zone comprised of acreage lying at or below 5 feet in elevation, declared

that all of those properties incurred a benefit, and allocated costs among them as a

percentage of total acreage meeting this criterion. Multiplying this percentage by $1000

to convert the resulting percentage figure into dollar terms does not make the result a

valid determination of benefits. RCW 85.38.160(2), the provision that allegedly inspired

the Board, requires that a special assessment district mail notices to each property

owner showing a hypothetical assessment that would raise $1000 for comparative

purposes only. The Board's process bears little substantive resemblance to this

provision.

       The Board's method for defining continuous base benefits also leads to absurd

results. Because this figure is expressed as percentage of the total benefited property

multiplied by $1000, it will never exceed $1000. Yet in the Gabeleins' case, it resulted

in an assessment that is dramatically higher than the supposed "continuous base

benefit" of $201.37. Under this interpretation, RCW 85.18.030, which requires that

continuous base benefits "shall in no instance exceed one hundred percent of the true

and fair value of such property in money,. . ." is rendered practically meaningless.

Notably, the Board's methodology resulted in a drainage assessment on a different

parcel that actually exceeded its fair market value. Statutes should be construed to

avoid results that are absurd and unconstitutional. Ryan v. Dep't of Social and Health

Servs.. 171 Wn. App. 454, 467, 287 P.3d 629 (2012).



                                             14
No. 70527-0-1/15


        The District also argues that the trial court erred in enjoining the County from

ever collecting more than $201.37 per year from the Gabeleins' property for its share of

annual drainage operating costs. This argument misconstrues the trial court's order,

which stated that the County cannot impose an annual assessment for drainage that

exceeds $201.37 "based on the District's benefit assessment roll dated October 23,

2012." The trial court did not limit the amount of the levy in perpetuity; it merely limited

the amount of any future levy that is based on the 2012 Roll. This order does not

prevent the District from adopting a new benefit assessment roll, based on different

methodology, and assessing the Gabeleins accordingly.8

        We hold that the District's assessment methodology misconstrues chapter 85.18

RCW and fails to comport with basic constitutional requirements governing all special

assessments, including diking districts. The resulting annual assessment on the

Gabeleins' property materially exceeds the amount of the drainage continuous base

benefit conferred by the District's drainage facilities, and materially exceeds the value of

the only acres that benefit.

        The next question is whether chapter 85.18 RCW requires continuous base

benefits to be calculated as the mathematical difference in the value of property before

and after receiving the benefit of the District's facilities. In its 2011 letter opinion

regarding the previous litigation, the trial court stated that "continuous base benefits" are

a special benefit accruing to property as a result of a local improvement, and that "[t]he


         8 RCW 85.18.130 provides that "ifthe Board does not act within its discretion or fails to correctly
construe and apply the law, the trial court may "change, confirm, correct, or modify the values of the
property in question as shown upon the roll...." Because the Board's methodology for calculating
continuous base benefits was fundamentally flawed, the trial court could not fix the problem simply by
correcting the value for the Gabeleins' property. Based on the District'sassertion that the continuous
base benefits for the Gabeleins' property amounted to $201.37, the trial court accepted the Gabeleins'
offer to pay this amount as their annual drainage assessment. This was not an abuse of discretion.

                                                     15
No. 70527-0-1/16


amount of the special benefit accruing to property as a result of a local improvement is

the difference between the fair market value of the property immediately after the

special benefits have accrued and the fair market value of the property before the

special benefits have accrued." Doolittle v. City of Everett. 114 Wn.2d 88, 93, 786 P.2d

253 (1990) (citing In re Schmitz, 44 Wn.2d 429, 434, 268 P.2d 436 (1954)). The court

then concluded that the former Board's decision to set continuous base benefits at no

greater than one hundred percent of assessed value was not illegal, reasoning that

flooded lands have no fair market value, and that the Board could properly determine

benefits to be something less than one hundred percent. And in the 2011 Order, the trial

court ruled that the District must measure benefits "by the difference in value for each

parcel of property before and after receiving the benefit." CP at 386. However, the trial
court's summary judgment order in this case rejected the District's assessment

methodology for the 2012 benefit roll without expressly reiterating its rulings in the

previous litigation orotherwise specifying how to conduct assessments in the future.9
        The District argues that allocating continuous base benefits in proportion to

benefited acreage is not prohibited by chapter 85.18 RCW. It contends that the before-

after valuation rule described in Doolittle and Schmitz applies only to special

assessments imposed pursuant to chapter 35.44 RCW, not continuous base benefits for

diking districts pursuant to chapter 85.18 RCW. It further argues that using before-after


        9As a preliminary matter, the District asserts that the trial court's rulings on this issue were
actually based on its rulings in the 2011 Order regarding the previous litigation. The District thus contends
that the trial court lacked subject matterjurisdiction because the Gabeleins' written objections to the
Board made no mention of the trial court's 2011 rulings. We disagree. In a letter ruling denying the
District's motion for reconsideration, the trial court specified that although its award of attorney's fees to
the Gabeleins was based on the District's failure to comply with prior rulings, its decision to grant
summary judgment to the Gabeleins was not. For the same reason, the District's argument thatsummary
judgment was improper because the prior rulings were "dicta" also lacks merit.
                                                       16
No. 70527-0-1/17


valuation to set continuous base benefits for drainage would be prohibitively difficult

because the drainage system has been in place for many years and has been

expanded over time.

       The Gabeleins apparently agree that "[a] precise mathematical approach to

valuation would not be consistent with the circumstances for which chapter 85.18 RCW

was adopted." Respondents' Brief at 32. They further acknowledge that "Chapter 85.18

RCW is not intended as a financing mechanism on a, 'one time only' basis, as would be

consistent with a value conferred before and after.. . ." But they argue that, in order to

comply with constitutional and statutory requirements, the determination of continuous

base benefits must be a computation of benefits, not just an allocation of costs. They

contend that setting continuous base benefits at no greater than one hundred percent of

fair market value, as the trial court described in its 2011 letter opinion, is consistent with

the before-after valuation standard.

       Accordingly, we decline to specify a particular methodology the Board must use

to establish future benefit assessment rolls. The Board has a certain degree of

discretion in making this determination. We emphasize, however, that any method for

calculating continuous base benefits must comport with the fundamental constitutional

requirements that "[sjpecial assessments for special benefits cannot substantially

exceed the amount of special benefits" and that "assessments for the public benefit

[must] be distributed with substantial equality over all property of like kind and similarly

situated with reference to the subject-matter of the assessment." Hargreaves. 43 Wn.2d

at 331-32; In re Eighth Ave.. 77 Wash, at 576. The method must also comport with the

statutory requirement that "continuous base benefits shall in no instance exceed one


                                              17
No. 70527-0-1/18


hundred percent of the true and fair value of such property in money. . .." RCW

85.18.030. Accordingly, the methodology must be based on a determination of benefits,

not merely an allocation of costs.

       One way to establish continuous base benefits would be to determine the

difference between the fair market value of the property before and immediately after

the special benefits have accrued, as in Doolittle. Another would be to set continuous

base benefits at or below one hundred percent of the assessed value, as described by

the trial court in its 2011 letter opinion. It would also be possible to develop a

methodology based on benefits per acre that complied with these requirements. There

may be other methods as well. But to pass constitutional muster any method adopted

must be based on a determination of the special benefits accruing to the subject

property, not merely an allocation of costs.

                                       Attorney Fees

       The District argues that the trial court erred in awarding attorney's fees to the

Gabeleins based on prelitigation misconduct. The standard of review for an award of

attorney's fees is abuse of discretion. Greenbank Beach and Boat Club. Inc. v. Bunnev,

168 Wn. App. 517, 524, 280 P.3d 1133. review denied. 175Wn.2d 1028,291 P.3d 254

(2012).

       "A trial court may award attorney fees only where there is a contractual, statutory,

or recognized equitable basis." Riss v. Angel. 80 Wn .App. 553, 563, 912 P.2d 1028

(1996) (quoting Miotke v. Spokane. 101 Wn.2d 307, 338, 678 P.2d 803 (1984)). "CR 11

and our inherent equitable powers authorize the award of attorney fees in cases of bad

faith." In re Recall of Pearsall-Stipek. 136 Wn.2d 255, 267, 961 P.2d 343 (1998).

Prelitigation misconduct is a recognized type of bad faith. Greenbank. 168 Wn. App. at

                                               18
No. 70527-0-1/19



525. "The term refers to obdurate or obstinate conduct that necessitates legal action to

enforce a clearly valid claim or right." jd. at 526. "Prelitigation misconduct, to be

sanctionable by an order to pay the other party's attorney fees, necessarily involves

some disregard of judicial authority." Id. at 526.

       In 2009 and 2010, waterfront property owners challenged the former Board's

assessment methodology, arguing that continuous base benefits are a kind of special

benefit to be computed using before-and after-analysis. In 2011, the trial court upheld

the District's overall assessment approach, but concluded that the District violated due

process by altering its assessment method without the required public notice. CP 377-

80. The trial court also agreed with the challengers that assessments had to be based

on "before and after" property values. CP 382. Accordingly, the trial court ruled that the

challengers' argument that the District's benefit assessment approach constituted an

unconstitutional ad valorem tax was moot and would not be ripe for adjudication until

the District followed proper process:

       The Petitioners ... declaratory judgment claim that DD-1's benefit
       assessment at 100% of true and fair value constitutes an
       unconstitutional tax rather than a benefit assessment is rendered moot
       by part 3 of this judgment and will not be ripe for adjudication until such
       subsequent time as DD-1 provides notice, holds hearings, and enters
       Findings of Fact supported by competent evidence establishing the
       actual benefit provided to properties benefited by DD-1 improvements,
       which must be measured bv the difference in value for each parcel of
       property before and after receiving the benefit, if any.

CP at 386 (emphasis added).

       The Gabeleins argue that the trial court properly awarded attorney fees because

the District committed prelitigation misconduct by ignoring the requirement to utilize

"before and after" valuation in computing benefit assessments. They contend that if the


                                              19
No. 70527-0-1/20


District had used before-and-after valuation in developing the 2012 Roll, they would not

have needed to bring this lawsuit. The District argues that it was not required to follow

language in the 2011 order stating that continuous base benefits "must be measured by

the difference in value before and after receiving the benefit from the District's drainage

improvements" because (1) the underlying claim was moot and not ripe for adjudication,

thereby rendering the language "dicta," and (2) the trial court's requirement that the

District utilize before-and-after valuation was incorrect on the merits.

       Although this is a procedurally unusual situation, we conclude that the trial court

did not abuse its discretion in awarding attorney's fees to the Gabeleins. Trial courts do

not make dicta. "A statement is dicta when it is not necessary to the court's decision in a

case" and as such is not binding authority. Protect the Peninsula's Future v. City of Port

Angeles. 175 Wn. App. 201, 215, 304 P.3d 914. review denied 178 Wn.2d 1022, 312

P.3d 651 (2013)). The concept has no application to a party to whom a trial court's

language was directed. Here, the District was a party to the litigation which culminated

in the final judgment quoted above. That litigation directly addressed the question of

whether the District must apply "before and after" valuation in calculating continuous

base benefits. The trial court's letter opinion and final judgment answered this question

in the affirmative. The District, having abandoned its appeal of the court's ruling, was

not free to ignore it.

       The District, citing Greenbank. further contends that attorney's fees cannot be

awarded based on the decision to adopt the 2012 Roll because that decision was the

basis of the action brought in the superior court. In Greenbank. the trial court awarded

attorney's fees to a homeowners' association based on defendants' bad faith conduct in



                                             20
No. 70527-0-1/21


building their home in violation of the association's restrictive covenants. The Court of

Appeals reversed, holding that "to allow an award of attorney fees based on bad faith in

the act underlying the substantive claim would not be consistent with the rationale

behind the American Rule regarding attorney fees." Greenbank. 168 Wn. App. at 527

(citing Shimman v. Int'l Union of Operating Eng'rs Local 18. 744 F.2d 1226, 1231

(1984)). But here, unlike Greenbank. the fee award was based on a disregard of judicial

authority in prior litigation involving the same parties.

       The Gabeleins seek attorney fees and costs on appeal. We may grant such an

award "[l]f applicable law grants to a party the right to recover reasonable attorney fees

or expenses. . . ." RAP 18.1(a). "Fees may be awarded as part of the cost of litigation

when there is a contract, statute, or recognized ground in equity for awarding such

fees." Thompson v. Lennox. 151 Wn. App. 479, 491, 212 P.3d 597 (2009) (citing W

Coast Stationary Eng'rs Welfare Fund v. City of Kennewick. 39 Wn. App. 466, 477, 694

P.2d 1101 (1985)). Here, the only basis on which to award fees to the Gabeleins would

be the District's prelitigation misconduct below. We decline to award fees on appeal on

this basis.

       Affirmed.




                                                                                   C3




WE CONCUR:
                                                      j^^^.C^,
                                                      I    ~7'                     ^ H;
                                                                                   CD   =S -n;


                \
               -U«i
                                                            Cv*,i.                 O

                                                                                   CO




                V

                                              21
