                                                                           FILED
                                                                         APRIL 4, 2017
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

MICHAEL C. DARLAND and MYRNA                   )
DARLAND, husband and wife, et al,              )         No. 34081-3-111
                                               )
                     Appellants,               )
                                               )
       V.                                      )
                                               )         UNPUBLISHED OPINION
SNOQUALMIE PASS UTILITY                        )
DISTRICT, a Washington municipal               )
corporation,                                   )
                                               )
                     Respondent.               )

       FEARING, CJ. - Landowners Michael and Myrna Darland sue a water-sewer

district, Snoqualmie Pass Utility District, claiming the utility district breached a contract

to provide water and sewer services or, in the alternative, seeking a refund of special

assessments levied on the Darlands' predecessors in title. The trial court, on summary

judgment, granted the Darlands partial relief. From an adverse second summary

judgment ruling, the Darlands appeal. We affirm the trial court's summary judgment

rulings and remand for possible further proceedings.
No. 34081-3-111
Darland v. Snoqualmie Pass Util. Dist.


                                         FACTS

       This lawsuit concerns assessments for water and sewer services on a tract of land

and extension of water and sewer utilities to the land. The tract of land comprises four

separate, but contiguous, tax parcels and consists of 76.8 acres of unimproved real

property. The property sits east of Snoqualmie Pass in Upper Kittitas County, lies near

and north of Interstate 90, and encompasses, in part, Gold Creek. Plaintiffs Michael and

Myrna Darland are current owners of the tract of land who wish to develop the land for

residences. Defendant Snoqualmie Pass Utility District, the local water-sewer district,

assessed the property for water and sewer services.

       Our lengthy and intricate facts begin in the 1970s. On August 3, 1977, Count

Michael Graf Von Holnstein purchased the 76.8 acres from Boise Cascade Home & Land

Corporation. Washington law then distinguished between water districts and sewer

districts. A 1996 legislative enactment reclassified each water district and each sewer

district into a sewer-water district. RCW 57.02.001. Snoqualmie Pass Utility District is

such a sewer-water district.

       To construct public water system improvements, sewer-water districts may form

utility local improvement districts (ULIDs ). A sewer-water district forms the ULID to

finance improvements that benefit a limited number of properties. After forming the

ULID, the utility district sells revenue bonds to pay for the improvements, and the owners

of the properties within the ULID pay assessments for the purpose of retiring the revenue

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Darland v. Snoqualmie Pass Util. Dist.


bonds. RCW 57.16.050.

       In 1978, Kittitas County approved a planned unit development on Michael Von

Holnstein's 76.8 acres. As a result of county approval, Kittitas County Sewer District

No. 1, a predecessor of Snoqualmie Pass Utility District, included the 76.8 acres in its

service area when finalizing the district's comprehensive plan. The Washington State

Department of Health, the State Department of Ecology, and Kittitas County endorsed the

comprehensive plan.

       On May 19, 1982, the board of commissioners of Kittitas County Sewer District

No. 1 adopted resolution number 82-3, which approved an assessment for Utility Local

Improvement District No. 4. The resolution provided that

              Each of the lots, tracts, parcels of land and other property shown on
       the assessment roll is declared to be specially benefited by the proposed
       improvement in at least the amount charged against the same.

Clerk's Papers (CP) at 130. The resolution also declared:

             [A ]11 future connections within Utility Local Improvement District
      No. 4 will be subject to a connection charge or ready-to-serve fee of
      $1,275.00 each, but the property owner will be entitled to a credit of one
      such connection charge for each $1,275.00 of assessment against that
      property up to the full amount of that assessment.

CP at 130. Resolution 82-3 does not identify the nature of the local improvement, but

plaintiffs Michael and Myrna Darland allege the improvement concerned sewer service.

ULID No. 4 assessed $48,917.25 against 72.47 acres of Michael Von Holnstein's

property. Apparently the ULID did not benefit all of Count Von Holnstein's 76.8 acres.

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Darland v. Snoqualmie Pass Util. Dist.


      We assume that Kittitas County Sewer District No. 1 changed its name to

Snoqualmie Pass Sewer District of King and Kittitas Counties sometime between May

19, 1982, and July 25, 1986. On July 25, 1986, Snoqualmie Pass Sewer District

Superintendent Richard Kloss penned a letter to Snoqualmie Pass landowners, including

Michael Von Holnstein. The letter addressed a proposed water system and read, in part:

              SUBJECT: Pass-wide Water System
             The following is in response to several questions asked about the
      proposed pass-wide water system:
              1. Financing will be accomplished by the formation of a Utility
      Local Improvement District (ULID). The bonds would be issued at
      approximately 8 1/2 percent (today's rate) payable over a 15 year period.
             The preliminary cost per acre is$ 1,425.00 and lots under 1 acre
      would be$ 475.00 per lot. This method of payment allows all land over 1
      acre to be guaranteed 3 residential equivalent hookups (1200 gpd). Lots
      under 1 acre would be entitled to 1 residential equivalent hookup.
             The monthly payment based on a current 8 1/2 percent interest rate
      for 15 years would be $14.03 per month per acre, and $4.68 for lots under 1
      acre.

CP at 26. Superintendent Kloss' letter did not identify the mentioned ULID by number,

but we assume the correspondence referred to ULID No. 7. Michael and Myrna Darland

challenge assessments for ULID Nos. 4 and 7.

      On December 10, 1986, the Snoqualmie Pass Sewer District Board of

Commissioners convened a regular meeting. The board of commissioners discussed

water and sewer hookups. The minutes of the meeting read in part:

             The Board of Commissioners stated that this does not include any
      distribution system for water and that it only runs the water mains by the
      property making water available to them, this is also true for sewer.

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Darland v. Snoqualmie Pass Util. Dist.



CP at 30. Later records also suggest not only a commitment to grant customers hookups,

but also a commitment by the utility district to extend sewer and water mains to utility

customers' respective properties, a promise contrary to utility industry customs.

       On April 8, 1987, the Snoqualmie Pass Sewer District Board of Commissioners

convened a regular meeting, during which the board discussed ULID No. 7. Minutes of

the April 8 meeting include this entry:

               Commissioner [Stan] DeBruler read the letter of protest from Mr.
       Von Holstein aloud to the [b]oard members. Von Holstein's property is 76
       acres, abuts Mt. Grandeur. Mr. Von Holstein wants out because he has no
       legal access because of easements. Supt. Kloss explained to the [b ]oard
       members the adjoining property owners and the neighboring easement
       problems. Easement possibilities were discussed by the [b ]oard and it was
       suggested that a response to Mr. Von Holstein be made as soon as possible.

CP at 173.

       On June 24, 1987, the Snoqualmie Pass Sewer District held a public hearing on the

final assessment roll for ULID No. 7. At the beginning of the hearing, Erling Johnson

asked what constituted ULID No. 7. Sewer District President Norm Craven responded:

             PRES. CRAVEN: ULID # 7 is the installation of a water trunk line
      from the top of the mountain down along the highway to the Hyak area
      across under the highway to the-what's the area?
             SUPT. KLOSS: Yellowstone Trail.
             PRES. CRAVEN: Yellowstone Trail. It will tie the whole mountain
      together into one complete water system. The trunk line at the present time
      -well 2 years ago-we installed a trunk line from the Alpental area from
      the wells in Alpental and the storage tanks in Alpental to the summit right
      outside this building. This ULID takes that trunk line from right outside
      this building down the pass to the Hyak area to the Yellowstone Trail area.

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Darland v. Snoqualmie Pass Util. Dist.


       It installs three 150,000 gallon storage tanks.

CP at 36-37.

       During this June 24 public hearing, a representative of Michael Von Holnstein

read a letter from Von Holnstein that expressed dismay over assessments on his property

with no development potential. The letter claimed the property could not be developed

because it lacked a sixty-foot right of way for access as required by the county. After the

reading of the letter, the following dialogue transpired:

              PRES.CRAVEN: Is there any other person that would like to
       address the Board relative to their property?
              JOHN HIGHT: I have a question. With a piece of property big
       enough to split and divide into another lot, will I have to pay the $710 two
       times?
              PRES.CRAVEN: You will have to pay another $710.
              SUPT. KLOSS: Property under one acre is entitled to one hookup
       and for anything above that you have to pay a hookup fee-710 is
       prepaying that hookup.
              SEC. DEBRULER: The_se are guaranteed hookups. We are
       guaranteeing you water. This ULID # 7 is bringing water in trunk line past
       your property.

CP at 39.

       On July 31, 1987, Snoqualmie Pass Sewer District Superintendent Richard Kloss

sent notice to all district customers that the district would proceed with ULID No. 7

construction. The notice further declared:

              The District will only be responsible for the water mains and the line
       from the main to the property line. The water service line is the
       responsibility of the homeowner or business.
              Prior to any work being done, please contact the District.

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Darland v. Snoqualmie Pass Util. Dist.


             If you have any questions, please contact me at the above address or
       phone (206) 434-6600.

CP at 33.

       In 1989, Louis Leclezio discussed, with Michael Von Holnstein, purchasing the

76.8 acres of land near Snoqualmie Pass. Leclezio expressed interest in developing the

property. To that end, Leclezio formed a joint venture investment group named Miller

Shingle Company.

       At the time Louis Leclezio negotiated the purchase of the acreage, he knew that

the land sat within the Snoqualmie Pass Sewer District boundaries and that the property

was subject to ULID Nos. 4 and 7. Leclezio further knew that Michael Von Holnstein

had defaulted on the ULJD assessments and the assessments had accrued penalties and

interest. Finally, Leclezio knew that the sewer district had threatened to foreclose on the

land unless Count Von Holnstein paid amounts owed.

       Before Miller Shingle Company purchased the 76.8 acres, Louis Leclezio viewed

the land and reviewed records at the Snoqualmie Pass Sewer District and at Kittitas

County. Leclezio met with the sewer district superintendent Richard Kloss. Leclezio

wanted to confirm the availability of water and sewer for the land and its potential for

rezoning to commercial use. Due to penalties and interest, the amount owed by Von

Holnstein to the district substantially exceeded the property purchase price, and so

Leclezio sought to measure the potential gain from payment of the assessments. Leclezio



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!i
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I,   No. 34081-3-111
     Darland v. Snoqualmie Pass Util. Dist.
1

     claims that, based on discussions with representatives of Kittitas County and the


II   Snoqualmie Pass Sewer District, he felt confident the county would rezone the land from

     forest and range land to commercial use. We suspect that the approved planned unit

     development conflicts with forest and range zoning and diverges from a proposed
I
     commercial use zoning. Leclezio does not identify the representatives who spoke with

     him or specify the comments uttered.

            According to Louis Leclezio, during a meeting with Snoqualmie Pass Sewer

     District Superintendent Kloss, Kloss showed Leclezio a hookup status ledger maintain~d

     by the district. The ledger disclosed that the sewer district owed Michael Von

     Holnstein's property two hundred and thirty water hookups and thirty-eight sewer

     hookups. Kloss also represented to Leclezio that the district guaranteed the hookups to

     the land. Finally, Kloss represented to Leclezio that the sewer district guaranteed

     delivery of the water and sewer lines to the boundary of each tax parcel of property

     within the district. Thus, Leclezio concluded that, upon payment of the assessments,

     penalties, and interest accrued on Von Holnstein's land, the district would provide the

     property a minimum of two hundred and thirty water hookups and thirty-eight sewer

     hookups and the sewer district would, at its cost, run the sewer and water mains from the

     district's then existing termini to at least the boundaries of the four tax parcels comprising

     the property. According to Leclezio, the district's guarantees induced him to purchase

     the 76.8 acres from Michael Von Holnstein and to pay all assessments, penalties, and

                                                   8
No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


interest owed to the district on closing of the purchase.

       Michael Von Holnstein transferred the 76.8 acres of land to Miller Shingle

Company on June 1, 1989. The company paid the purchase price to Von Holnstein and

$492,781.44 to the Snoqualmie Pass Sewer District for ULID Nos. 4 and 7 assessments,

interest, and penalties. On September 12, 1989, the Board of Kittitas County

Commissioners approved Leclezio' s request to rezone the property from forest and range

land to commercial land.

       From 1991 to 2000, Snoqualmie Pass Sewer District Superintendent Richard

Kloss procured several quit claim transfers that granted the sewer district road and utility

access to Miller Shingle Company's 76.8 acres. We assume that these easements would

have permitted the laying of sewer and water lines from the sewer district's trunk lines to

the 76.8 acres. Nevertheless, the sewer district's board of commissioners knew not of the

transfers and never approved the transfers. The parties to this appeal proceed on the

assumption the easements were void.

       We assume that at some date between 1989 and January 30, 1998, the Snoqualmie

Pass Sewer District changed its name to Snoqualmie Pass Utility District, the name of the

defendant in this suit. In January 1998, Louis Leclezio commenced preparations for the

marketing and sale of the property. He then sought confirmation from the Snoqualmie

Pass Utility District as to the number of water and sewer hookups available to the

property. In response to the inquiry, the utility district faxed a copy of a one page

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No. 34081-3-111
Darland v. Snoqualmie Pass Util. Dist.


document headlined "Hookup Status." CP at 145. The document continued to show the

acreage had two hundred and thirty unused water hookups and thirty-eight unused sewer

hookups.

        On August 11, 1999, the board of commissioners of the Snoqualmie Pass Utility

District convened. Meeting minutes from August 11 portend a water shortage within the

district. The minutes read, in part:

                          SYSTEM CONNECTION CHARGES
              Supt. Kloss distributed copies of a draft resolution from Foster
       Pepper & Shefelman to rescind pre-paid hookups as was discussed at our
       last meeting. After a lengthy discussion the Board agreed to research this
       matter further and see what other alternatives might be available. In the
       meantime we need to put together a plan before any action can be taken.
              Supt. Lenihan stated that our water rights issue is the biggest
       problem. With our current water rights we cannot honor the water
       hookups. He also reported that our wells are not reliable and the plan
       should include for the cost to put in a new well and additional storage.

CP at 45.

       In March 2001, the Snoqualmie Pass Utility District adopted a temporary

moratorium on the issuance of new certificates of water availability. The utility district

acknowledged nearly exhausting its available water rights. We are unaware if the utility

district revoked the moratorium and of the current availability of water to customers

within the utility district.

       In June 2001, Louis Leclezio received an offer from an unidentified purchaser to

purchase the 76.8 acres for $6 million subject to confirmation of available water and



                                             10

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No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


sewer utilities. Thereafter Leclezio and Snoqualmie Pass Utility District exchanged a

series of letters, primarily written by attorneys, through which Leclezio sought to confirm

the right to water and sewer hookups and in which the utility district denied any

guarantee for hookups.

       On June 2, 2001, attorney R. Drake Bozarth sent a letter on behalf of Louis

Leclezio and Miller Shingle Company to the Snoqualmie Pass Utility District. The letter

informed the utility district that a developer wished to acquire the property subject to the

district reconfirming in writing the total number of water and sewer hookups available.

On July 18, 2001, the Snoqualmie Pass Utility District replied to Drake Bozarth's letter:

              The District's current policies for property owners in the District
       seeking water service are set forth in Resolution No. 2001-3, adopted by the
       Board of Commissioners on March 14, 2001, and Resolution No. 2001-6,
       adopted by the Board of Commissioners on April 25, 2001. Pursuant to
       Resolution No. 2001-6, a waiting list for the allocation of remaining and
       future water supply was established.

CP at 49.

       On September 5, 2001, Drake Bozarth, on behalf of Louis Leclezio, advised the

Snoqualmie Pass Utility District that Leclezio prepaid for two hundred and thirty water

hookups and thirty-eight sewer hookups under ULID Nos. 4 and 7. Bozarth again

requested that the utility district verify in writing the availability of water and sewer

service to the 76.8 acres. On September 6, 2001, the utility district's attorney, Mark

Greenough, sent another letter to Bozarth. The letter read in part:


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No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


              With respect to your client's claim that your client's payment of
       ULID assessments is the equivalent of a system connection charge, there
       appears to be some misunderstanding in distinguishing ULID assessments
       and system connection charges. The District has authority to impose ULID
       assessments under RCW 57.16.050. The District has separate authority to
       impose system connection charges under RCW 57.08.005. In classifying
       customers, the District may in its discretion consider capital contributions
       made to this system including assessments. RCW 57.08.081.
              It appears that at certain times in the past, the District has maintained
       a policy of granting credits against system connection charges for ULID
       assessments that have been paid. However, a credit against a system
       connection charge is not the same as payment of the system connection
       charge itself. Please note that any credit for ULID assessments against
       future payment of system connection charges is at the discretion of the
       Board of Commissioners of the District. RCW 57.08.081.

CP at 57-58.

       On September 18, 2001, Drake Bozarth, on behalf of Louis Leclezio, notified the

Snoqualmie Pass Utility District by letter that its conduct and apparent rescission of its

obligations by reason of payment of the ULID assessments would cause a substantial

decrease in the market value of the 76.8 acres. On September 23, 2003, Daniel Mallove,

new counsel for the utility district, wrote to Brian Dorsey, new counsel for Louis

Leclezio:

              Your August 6, 2003 letter also asked the District to confirm the
      entitlement of the Leclezio/Darland property to a certain number of water
      and sewer connections and the actual capacity of the District to meet what
      you describe as the District's "obligation under those entitlements."
              As you may be aware, the District wrote to R. Drake Bozarth, your
      clients' previous counsel, on November 15, 2001 concerning the issues you
      have raised. Please be advised that the District's position has not changed
      since that letter was sent. Specifically, it is the District's position that your
      clients do not have a guaranteed entitlement to any water and sewer

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No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


       connections to their property. Rather, pursuant to District Resolution No.
       87-11, your clients received a monetary credit to be applied to the system
       connection charges to be paid by your clients as part of the District's
       issuance of a Certificate of Water Availability for the subject property.
               If your clients wish to obtain water or sewer service, they will need
       to file an appropriate application for service pursuant to the requirements of
       Resolution No. 2002-05 or any other applicable resolutions passed by the
       District.

CP at 63. Thereafter, the proposed sale of the property failed due to the refusal of the

utility district to confirm the availability of water and sewer service to the property.

       On June 12, 2003, Miller Shingle Company sold the 76.8 acres to Louis Leclezio,

Michael Darland, and Myrna Darland. We know nothing about the negotiations leading

to the sale. The deed specifically conveyed

              water rights, utilities, including Snoqualmie Pass Utility District
       water and sewer hook-ups, (believed, without warranty by grantor, to
       consist of 230 water hook-ups and 38 sewer hook-ups).

CP at 115. Under a contract between Louis Leclezio, on the one hand, and Michael and

Myrna Darland, on the other hand, the Darlands would hold title to the entire property

and would convey twenty-six acres to Leclezio upon the satisfaction of certain

conditions, including proof that the property was entitled to receive two hundred and

thirty water hookups and thirty-eight sewer hookups. The Darlands intended a residential

development on the land and named the proposed development SnoCadia.

       Currently the Snoqualmie Pass Utility District sewer main ends two thousand and

two hundred feet from the southern line of SnoCadia. The utility district's water main


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No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


ends four thousand and five hundred feet from the property. No easements permit lateral

lines to traverse between the two main lines and the 76.8 acres. Private landowners own

some of the land between the water and sewer mains, on the one hand, and the acreage,

on the other hand. The Washington State Department of Transportation or United States

Forest Service owns other intervening land.

       At some unknown date, the Washington State Department of Transportation

granted to Michael and Myrna Darland's predecessors a twenty-foot access easement to

the property. Nevertheless, Kittitas County requires the Darlands to obtain two sixty-foot

access easements in order to develop the acreage for residences.

                                       PROCEDURE

       The case has a long thirteen year history. On July 14, 2004, Michael and Myrna

Darland and Louis Leclezio sued Snoqualmie Pass Utility District. The Darlands and

Leclezio requested a declaratory judgment, a writ of mandamus, and damages for inverse

condemnation, breach of contract, estoppel, and tortious interference. The Darlands and

Leclezio asked for an order establishing their right to the delivery of services to the

outside boundaries of the 76.8 acres in order to serve two hundred and thirty residential

units with water and thirty-eight residences with sewer. The Darlands and Leclezio also

sought an order compelling Snoqualmie Pass Utility District to lay lateral lines from its

main trunk lines to SnoCadia's outside borders. Later the Darlands would demand that

the utility district condemn intervening land to procure for the Darlands sixty-foot access

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No. 34081-3-111
Darland v. Snoqualmie Pass Util. Dist.


easements.

       On August 30, 2004, the Snoqualmie Pass Utility District answered Michael and

Myrna Darland's and Louis Leclezio's complaint and primarily denied the complaint's

allegations. Nevertheless, the utility district admitted that, through the formation of

ULID Nos. 4 and 7, it entered into a contract with the owners of property within those

two ULIDs. The contract conferred certain "special benefits" to those property owners.

The district raised the affirmative defenses of the statute of limitations, lack of

jurisdiction, waiver, estoppel, laches, lack of consideration, anticipatory repudiation, a

third party caused any damages, and failure to mitigate.

       On January 25, 2005, Michael and Myrna Darland and Louis Leclezio moved for

partial summary judgment on the following questions:

              Issue No. I: Did the District guarantee that the Property would
       receive 230.07 ERU's of water service and 38.37 ERU's of sewer service
       as a "special benefit" to the Property by assessing the Property for said
       service, when all assessments have been paid in full?

              Issue No. 2: Is a[n] ERU [equivalent residential units] defined for
       purposes ofULID No. 7 as the equivalent of 400 gallons per day (gpd) of
       water?

              Issue No. 3: Is the District obligated, at its sole expense, to extend
       the water and sewer mains to at least the boundary of each parcel
       comprising the Property, with sufficient capacity to deliver at least 400
       gallons per day (gpd) of water per hook-up?

CP at 89-90 (boldface omitted).

       On March 8, 2005, the Snoqualmie Pass Utility District cross-moved for summary

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No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


judgment. The utility district maintained that Michael and Myrna Darland and Louis

Leclezio failed to comply with the procedural requirement ofRCW 4.96.020 for a claim

against the district. In response, the Darlands and Leclezio contended the utility district

waived the affirmative defense under RCW 4.96.020 by failing to raise the defense in its

answer to the Darlands' and Leclezio's complaint. The Darlands and Leclezio also

argued that the utility district should be estopped from asserting the defense because it

waited until after the statute of limitations ran before raising a curable procedural defect,

the district failed to comply with the claim filing statute, and the district had actual notice

of the Darlands' and Leclezio's claims more than a year before they filed suit.

       The trial court granted in part and denied in part Michael and Myrna Darlands'

and Louis Leclezio's summary judgment motion and denied the Snoqualmie Pass Utility

District's motion for summary judgment. The trial court denied the district's motion for

summary judgment under the claim filing statute because the district waived or was

estopped from asserting the defense of failure to comply with the claim filing statute.

The court next concluded that Michael and Myrna Darland and Louis Leclezio were

entitled to receive two hundred and thirty hookups of water service at four hundred

gallons per day per residence and thirty-eight hookups of sewer service as a special

benefit under ULID Nos. 4 and 7. The court denied summary judgment as to the question

of whether the utility district must, at its expense, extend the water and sewer mains to

the property boundaries. The court found competing facts as to whether the utility

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No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


district agreed to extend service lines to the 76.8 acres.

       The trial court prepared an extensive memorandum decision. On May 16, 2005,

the court entered the following order on summary judgment:

               1. Plaintiffs' approximately 76.8 acres of unimproved real property
       at issue in this litigation is entitled to receive 230.07 ERUs (equivalent
       residential units) of water service, at 400 gallons per day per ERU, as a
       special benefit under ULID No. 7, said benefit having already been paid for
       in full by plaintiffs and/or their predecessors-in-interest;
               2. Plaintiffs' said property is also entitled to receive 38.37 ERUs
       (equivalent residential units) of sewer service as a special benefit under
       ULID No. 4, said benefit having already been paid for in full by plaintiffs
       and/or their predecessors-in-interest; and
               3. Unresolved issues of fact and law remain for further disposition
       regarding the issue of whether defendant is obligated, at its sole expense, to
       extend water and sewer mains to the property boundaries so that plaintiffs
       can enjoy the special benefits for which they have already paid.

CP at 563-64.

       In September 2005, the parties entered a memorandum of agreement tentatively

resolving the dispute. Under the agreement, each party assumed separate responsibilities

to seek necessary right-of-way permits and easements to create access to the 76.8 acres in

order to allow development of SnoCadia. The Snoqualmie Pass Utility District incurred

the primary responsibility of seeking utility related rights-of-way, easements, and

permits. The Darlands acquired the primary responsibility to obtain all access related

easements and permits, principally in the form of two sixty-foot wide access roads to the

property in order to comply with county requirements for development. The procurement

of easements was a condition to the Memorandum of Agreement becoming a binding

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Darland v. Snoqualmie Pass Util. Dist.


agreement. Paragraph 12 read, in part:

               In the event the Parties are unable to secure such permits and
       easements as provided for in paragraph 2 above on or before the expiration
       of said period, or as may be extended by mutual agreement, this Agreement
       shall become null and void unless otherwise waived by Plaintiffs. If this
       Agreement shall become void, the Parties shall retain and otherwise reserve
       all rights and remedies under that action currently pending in Kittitas
       County Superior Court, Cause No. 04-2-00411-2 and Plaintiffs shall be
       entitled to resume prosecution of the same upon ten ( 10) days written notice
       to the District.

CP at 1100. On October 4, 2005, the parties entered a stipulation and order staying

litigation pending settlement.

       At some unknown time, Snoqualmie Pass Utility District requested the

Washington State Department of Transportation to deed the utility district a utility

easement across the department's abandoned Sunset Highway near the 76.8 acres. In late

2006, the Department of Transportation informed the utility district that the department

would take no immediate action on the request pending the completion of environmental

studies relating to the department's Interstate 90 Snoqualmie Pass East Project. The

Department of Transportation advised the utility district that the department anticipated

completion of the environmental studies in the summer of 2007, at which time the

department would further consider the district's requests for an easement.

      Probably during the time that the Snoqualmie Pass Utility District contacted the

Department of Transportation for a utility easement, Michael and Myrna Darland

requested access and utility easements from the department in order to serve SnoCadia.

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No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


On November 16, 2006, the Department of Transportation, by letter and with best wishes

for the holiday season, denied the Darlands' request for an access easement because the

property lies in the Gold Creek Enhancement Area. The department planned to create the

Gold Creek Enhancement Area as a pioneering environmental mitigation project to create

passage for animals and fish. The department concluded its November 16 letter:

             At this point it does not seem possible that the State will entertain
       any additional access or utility requests at this location.

CP at 980.

       On August 24, 2007, John Milne, new counsel for the Snoqualmie Pass Utility

District, sent the Department of Transportation a request for the extension of a utility

easement over a portion of the Old Sunset Highway right-of-way to facilitate water and

sewer utility service to Michael and Myrna Darland's 76.8 acres. The August 24 letter

reminded the Department of Transportation of past comments by department

representatives that the department owns the Old Sunset Highway in fee simple, the

highway was surplus to the department's needs, the department would likely convey the

highway land to the Darlands for access to SnoCadia, and the department would deed a

utility easement to the utility district to service SnoCadia and other land. The letter

recognized a contractual obligation of the utility district to provide an extension of utility

services to the Darlands' land and the need for the extension of the utility easement to

fulfill this duty. Milne's letter claimed that the underground utilities would not impact


                                              19
No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


the environment and noted that the Darlands already owned a twenty-foot easement in the

area of the proposed utility easement extension.

       On September 17, 2007, the Washington State Department of Transportation

replied to the Snoqualmie Pass Utility District's August 24 letter. The letter declined the

request to expand the existing twenty-foot access easement's width, but stated the

department would recognize a utility easement within the existing twenty-foot easement,

as long as the use of the easement accorded with the department's planned actions in the

Gold Creek area.

       In October 2009, Michael Darland requested the Snoqualmie Pass Utility District

pursue an eminent domain action against the State of Washington to obtain road access

for SnoCadia. The utility district advised that it would seek condemnation if necessary

for utility access, but not for road access. The utility district's counsel advised the district

that it lacked authority to condemn property for a road to SnoCadia. The district also

offered to allow, within certain liability limiting parameters, the Darlands to pursue an

eminent domain suit for road access on behalf of the district.

       In 2010, the State Department of Transportation gave notice of its intent to transfer

to the United States Forest Service the property over which the Darlands desire an

easement. The record does not reflect an actual transfer.

       On June 21, 2010, plaintiff Louis Leclezio filed a cross-claim against plaintiffs

Michael and Myrna Darland. Leclezio sought a declaration of rights between the parties

                                              20
No. 34081-3-111
Darland v. Snoqualmie Pass Util. Dist.


under the Leclezio-Darland agreement, wherein the Darlands agreed to reconvey twenty-

six acres to Leclezio upon the fulfillment of certain conditions. The Darlands filed an

answer to the cross-claim and several counterclaims against Leclezio. On October 11,

2011, the trial court ruled for the Darlands on their cross-claims and terminated any

obligation to convey the twenty-six acres. The trial court's order resolved all claims

between Leclezio and the Darlands.

         On August 20, 2014, Michael and Myrna Darland filed their first amended

complaint for declaratory judgment, breach of contract and implied covenant of good

faith and fair dealing, negligence, inverse condemnation, estoppel, and unjust enrichment.

In January 2015, the Darlands again moved for partial summary judgment. The Darlands

requested that the trial court compel the district to use its powers of eminent domain to

condemn two sixty-foot-wide access and utility easements over privately held properties

so that the Darlands' property could utilize the special benefits conferred by ULID Nos. 4

and 7.

         The trial court denied Michael and Myrna Darland's second summary judgment

motion. On April 16, 2015, the trial court entered the following order:

                 ( 1) With respect to the issue of road access to plaintiffs[ sic] property,
         because defendant does not have the legal authority to exercise its powers of
         eminent domain to condemn property for the purpose of providing road access to
         plaintiffs' property, plaintiffs are not entitled to judgment against defendant as a
         matter of law on that issue;
                 (2) With respect to the issue of extending utility service to plaintiffs [sic]
         property, questions of fact exist as to (a) which party should pay for the costs of

                                               21
No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


       any eminent domain proceeding which may be necessary to acquire the property
       rights to extend utility service to plaintiff's [sic] property and (b) which party
       should pay for the costs of installation of the water and sewer mains needed to
       extend utility service to plaintiff's [sic] property; and
               (3) Consequently, Plaintiffs' Motion for Partial Summary Judgment is
       DENIED.

CP at 1106. In its letter memorandum explaining its decision, the trial court observed

that the Snoqualmie Pass Utility District will not be required to provide access easements,

but will be required to provide utility easements. The court wrote:

              The court denied the motion primarily due to the request for a 60' -
      wide "access-easement." Defendant [Snoqualmie Pass Utility District] has
      no legal ability to take private property for "access" but would of course be
      required to use its power to create utility easements. Since plaintif:fls]
      seek[] access as well as utilities, they seek too much. The court determines
      as a matter of law that plaintiff is not entitled to an order requiring
      defendant to provide "access easements."
              As to the cost of bringing the utilities to the edge of the property,
      Judge Cooper explained in 2005 that a question of fact remains regarding
      whether defendant is required to, at its sole expense, extend water and
      sewer mains to the property boundary so that plaintiffs can enjoy the
      special benefits for which they have already paid. Accordingly, that
      question remains in need of a trial. While it may ultimately be determined
      after trial that defendant should pay for the legal costs of the eminent
      domain proceeding and that plaintiffs should pay for the "dirt work"
      (trenching and pipe costs), the court could also fashion some other sort of
      remedy. In any event, it does at this point seem beyond dispute that
      defendant shall have to, whether it wishes or not, exercise its power of
      eminent domain to ensure that plaintiff has access to the sewer and water
      benefits already paid for. "In order for a sewer to be susceptible of use to a
      given parcel of land, there must be access from said land to said sewer
      without passing through the property of other individuals." Memorandum
      Decision, page 9 (quoting Towers v. Tacoma, 151 Wash. 577, 583 (1929)).

CP at 1104.


                                            22
No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


       On July 8, 2015, Michael and Myrna Darland filed a motion for partial summary

judgment seeking to recover the monies paid to the Snoqualmie Pass Utility District

under ULID Nos. 4 and 7 for water and sewer service. On October 22, 2015, the utility

district cross-moved for summary judgment on the Darlands' claim for the return of

money paid. On December 28, 2015, the trial court denied the Darlands' motion for

partial summary judgment and granted the district's motion for summary judgment. The

trial court thereby dismissed the action for reimbursement. In a memorandum decision,

the trial court explained:

               Having exhausted their ability to obtain adequate access to this
       property (and presumably develop it like originally envisioned), plaintiffs
       resort to the only remedy they can presently conceive of: a money judgment
       against defendant for the value paid of past assessments, plus interest. This
       request is put forth with full knowledge that plaintiffs themselves never
       paid one penny towards the assessments in question: those assessments
       were paid for by the previous landowners. The overall condition of the
       property was known, or should have been known, to plaintiff when it was
       purchased. The price of the property when plaintiffs purchased it
       necessarily included every facet of that property; and every tort, contract,
       easement or other legal burden cognizable at law was transferred with the
       property to the plaintiffs when they took that deed. There was then and is
       now no cognizable claim for recoupment of previously paid ULID
       assessments.
               From the evidence presented it is clear that defendant has done
       nothing to harm plaintiffs or their property, and the assessments defendants
       previously collected from the previous landowners were legally collected
       and legally expended, and nothing has been presented by plaintiff which
       establishes a need to have a trial about anything. Defendant's motion
       should be granted, plaintiffs' motion should be denied, and the case should
       be dismissed entirely.

CP at 1510 (emphasis added). On December 28, 2015, the trial court entered an order

                                            23
No. 34081-3-111
Darland v. Snoqualmie Pass Util. Dist.


granting the Snoqualmie Pass Utility District's summary judgment motion, which order

reads, in part:

              IT IS HEREBY ORDERED, ADJUDGED AND DECREED that
       (1) Defendant's Cross-Motion for Summary Judgment is GRANTED;
       (2) Plaintiffs' Motion for Partial Summary Judgment Seeking to Recover
       All Monies Paid to District is DENIED; and this action is dismissed
       without fees or costs to either party.

CP at 1507.

                                 LAW AND ANALYSIS

       Before addressing the assignments of error asserted by the parties, we note an

anomaly regarding this appeal. In the May 16, 2005 summary judgment order, the trial

court ruled in favor of Michael and Myrna Darland that the Snoqualmie Pass Utility

District must provide two hundred thirty water hookups and thirty-eight sewer hookups to

the 76.8 acres. This summary judgment order has never expressly been revoked or

modified. The summary judgment order also reserved for a later hearing the question of

who should pay to extend the water and sewer lines from the respective mainline termini

to the border of SnoCadia. The parties did not further litigate this important question

before the trial court.

       The trial court's December 28, 2015 order dismisses the "action." CP at 1507. By

that date, the 2005 trial judge had retired, and a new trial judge entertained the 2015

summary judgment motions. If we read the 2015 order literally, the relief granted to

Michael and Myrna Darland in 2005 became null. Neither party enlightens us as to its or

                                             24
No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


their position on whether the 2015 order voided the 2005 order. Neither party provides

legal analysis on the question of whether Snoqualmie Pass Utility District remains

obligated under the 2005 order to provide two hundred and thirty water hookups and

thirty-eight sewer hookups.

       On appeal, Michael and Myrna Darland focus on forcing the Snoqualmie Pass

Utility District to condemn access easements to SnoCadia or to refund the special

assessments paid. The Darlands assign no express error to the language in the 2015

summary judgment order dismissing the action. Maybe the Darlands lack any interest in

the 2005 order unless a court orders the utility district to gamer access easements needed

by the Darlands to develop SnoCadia. We issue no ruling as to whether the 2015 order

dismissing the action abrogated the 2005 order obligating the utility district to provide

water and sewer hookups.

       Issue 1: Is the Snoqualmie Pass Utility District obligated at its costs to extend the

existing water and sewer lines to Dar/ands' property under ULID Nos. 4 and 7?

       Answer 1: We do not answer this question because the parties did not properly

brief the issue.

       Michael and Myrna Darland assign error to the 2005 summary judgment order that

denied its summary judgment motion to the extent the motion sought a ruling compelling

the Snoqualmie Pass Utility District to lay, at the utility's cost, the utility lines between

the current mainline termini and SnoCadia's outer boundary. The trial court ruled

                                              25
No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


questions of fact precluded the grant of summary judgment on this claim.

       Despite the assignment of error, the only comments from the Darlands, in the body

of their opening appeals brief regarding this assignment of error, read:

              The District also represented that the water and sewer service was
      guaranteed and would be delivered to the boundary of each property
      parcel.
              Accordingly, the District must fulfill its contractual obligation to
      deliver the promised water and sewer service. And the only way it can do
      so is by condemning the two 60' -wide access and utility easements needed
      to allow the Property to receive the paid-for water and sewer service.

Br. of Appellant at 20 (citations and boldface omitted). This passage suggests that

Michael and Myrna Darland's primary concern is access easements to the property, not

the laying of utility lines by Snoqualmie Pass Utility District to SnoCadia. More

importantly, the Darlands fail to provide any analysis in their opening brief as to the

purported contractual guarantee of delivery of water and sewer service to the SnoCadia

boundary line. This court does not review errors alleged but not argued, briefed, or

supported with citation to authority. RAP 10.3(a)(6); Valente v. Bailey, 74 Wn.2d 857,

858,447 P.2d 589 (1968); Meeks v. Meeks, 61 Wn.2d 697,698,379 P.2d 982 (1963);

Avellaneda v. State, 167 Wn. App. 474, 485 n.5, 273 P.3d 477 (2012).

       In their reply brief, Michael and Myrna Darland provide analysis as to

representations uttered by the Snoqualmie Pass Utility District and why those

representations created an enforceable contract. The Darlands also forward legal

authority to support their contention that the utility district is bound by comments of its

                                             26
No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


superintendent, Richard Kloss. We decline to entertain this argument, however, because

the Darlands failed to submit their argument in their opening brief. Questions not argued

in appellant's principal brief cannot be considered on appeal, though they are argued in

respondent's brief and in appellant's reply brief. Royal Dairy Products Co. v. Spokane

Dairy Products Co., 129 Wash. 424, 427-28, 225 P. 412 (1924); Stickler v. Giles, 9

Wash. 147, 148, 37 P. 293 (1894); FPA Crescent Associates, LLC v. Jamie's LLC, 190

Wn. App. 666, 679, 360 P.3d 934 (2015). Argument and authority raised for the first

time in a reply brief comes too late. In re Marriage ofSacco, 114 Wn.2d 1, 5, 784 P.2d

1266 (1990); King v. Rice, 146 Wn. App. 662, 673, 191 P.3d 946 (2008).

       In its opening brief, the Snoqualmie Pass Utility District writes:

               Although Judge Cooper [the judge entering the 2005 order] denied
       this motion without explanation on September 15, 2005 (CP at 1903-05),
       Judge Sparks [the judge entering the 2015 order] appears to have granted
       summary judgment to the District based on similar arguments in his Order
       of December 28, 2015. To the extent [the] Darland[s] appeals the dismissal
       of their claims on the basis that they are barred by RCW 57.16.090, the
       District cross-appeals the order of Judge Cooper which dismissed the
       District's similar motion in 2005.

Resp't's Br. at 2 n.1. Nevertheless, the utility district presents no argument challenging

the 2005 order at least to the extent the order imposes an obligation on it to provide the

hookups. As already stated, this court does not review errors alleged but not argued,

briefed, or supported with citation to authority. Valente v. Bailey, 74 Wn.2d at 858

(1968); Meeks v. Meeks, 61 Wn.2d at 698 (1963); Avellaneda v. State, 167 Wn. App. at


                                             27
No. 34081-3-111
Darland v. Snoqualmie Pass Util. Dist.


485 n.5 (2012). Assuming that the utility district considers a ruling that RCW 57.16.100

bars Michael and Myrna Darland from challenging the ULID assessments also constitutes

a ruling dismissing the Darlands' breach of contract claim, we disagree.

       Issue 2: Did the trial court err when ruling that the Snoqualmie Pass Utility

District lacks legal authority to condemn private property for access and utility

easements benefitting the Dar/ands' property?

       Answer 2: We do not address this issue because the Snoqualmie Pass Utility

District lacks any obligation to condemn property for the purpose of access to the

Dar/ands' land.

       The trial court ruled that the Snoqualmie Pass Utility District lacks legal authority

to condemn property for the purpose of road access to a potential customer of the water-

sewer district. Michael and Myrna Darland assign legal error to this ruling. The

Darlands also, however, assign error to the trial court's purported ruling that the utility

district lacks authority to condemn property for utility easements. We find no such

second ruling by the trial court. Perhaps the Darlands combine the two forms of

easements in one assignment of error with the understanding that a utility easement may

lay within the access easement. Nevertheless, the easements are distinct. We only

address the ruling announced by the trial court.

       Michael and Myrna Darland contend that the Snoqualmie Pass Utility District

holds a contractual obligation to provide water service to two hundred and thirty

                                             28
No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


residences and sewer service to thirty-eight residences to the SnoCadia property. The

trial court agreed with the Darlands' position that service must be made available, at least

at the termini of the respective mainlines and reserved for a factual hearing the question

of who extends the lines from the mainlines to the 76.8 acres border.

       Michael and Myrna Darland further assert that, in order to satisfy its contractual

obligations to provide services, the Snoqualmie Pass Utility District must exercise its

power of eminent domain to condemn two sixty-foot road easements from the utility

district mainline to the Darlands' four tax parcels of land because Kittitas County

requires these access easements in order for the Darlands to subdivide and develop their

land. According to the Darlands, without the access easements, the Darlands will not be

able to benefit from the water and sewer hookups promised by the utility district, and,

thus, to fulfill its obligations, the district must take steps to permit the Darlands to

subdivide the land.

       The parties discuss at length whether a water-sewer district has authority to

condemn land for roads. Nevertheless, we need not address whether a water-sewer ·

district holds authority to condemn property for access to a utility customer's land,

because the Snoqualmie Pass Utility District never contracted to condemn or build roads

for SnoCadia. Michael and Myrna Darland present strong evidence that the utility district

promised to lay the water and sewer lines to the SnoCadia border. Nevertheless, the

Darlands impart no evidence that the utility district represented that it would provide

                                              29
No. 34081-3-111
Darland v. Snoqualmie Pass Util. Dist.


access easements for SnoCadia.

       The Darlands strenuously argue that, because the utility district owes them a duty

to extend water and sewer services, the utility district must take additional steps to help

develop SnoCadia so that the Darlands may enjoy the services. Nevertheless, the

Darlands cite no authority for this argument. We doubt any authority exists for the

proposition that a utility's promise to supply water and sewer service includes a

commitment to also assure the property with road access. Such a rule could financially

burden small utilities. Regardless, this court does not review errors alleged but not

supported with citation to authority. RAP 10.3; Avellaneda v. State, 167 Wn. App. at 485

n.5 (2012).

       Issue 3: Whether RCW 57.16.100(1) bars the Darlandsfrom seeking a refund of

assessments paid under ULID Nos. 4 and 7?

      Answer 3: Yes.

       In the event this court imposes no obligation on the Snoqualmie Pass Utility

District to condemn access to SnoCadia, the Darlands seek recovery of assessments paid

by their predecessors to the utility district for ULID Nos. 4 and 7. To that end, the

Darlands forward numerous arguments. The Snoqualmie Pass Utility District also asserts

some defenses. We address only one of those defenses we deem controlling. The utility

district contends that RCW 57.16.100(1) conclusively bars the Darlands' claim for a

refund of assessments because of an untimely challenge. We agree.

                                             30
No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


       Water-sewer districts are special purpose local government bodies whose powers

and duties are generally codified in Title 57 RCW. RCW 57.08.005 establishes the

general powers of a water-sewer district. Those powers include the authority to compel

all landowners within its service area to connect to the district's sewer system and to

establish local improvement districts and levy assessments on property owners within the

local improvement district. RCW 57.08.005(9), (19).

       The Washington Legislature invests local governments with the authority to defray

the cost of local improvements by specially assessing nearby properties benefited from

the improvements. Tiffany Family Trust Corp. v. City of Kent, 155 Wn.2d 225, 228, 119

P.3d 325 (2005); Philip A. Trautman, Assessments in Washington, 40 WASH. L. REV.

100, 100 ( 1965). Chapter 57 .16 RCW outlines the process for a water-sewer district to

create a utility local improvement district within its territory and impose special

assessments on property benefited by the local improvement in order to pay for the

improvement. The process echoes the creation of local improvement districts by other

governing bodies.

       The sewer-water district's board of commissioners may initiate the formation of a

local improvement district by adopting a resolution that establishes the nature and

territorial extent of the proposed improvement, estimates the cost of the improvement,

states the proportionate amount of the cost that will be borne by the property within the

proposed improvement district, and fixes a date, time, and place for a public hearing on

                                             31
No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


the formation of the proposed improvement district. RCW 57.16.060. The district then

sends notice to landowners of the public hearing. RCW 57.16.060. At the public

hearing, the board of commissioners shall hear objections from landowners and may

narrow the boundary of the proposed improvement district. RCW 57.16.062. If the

commissioners find that the improvement district should be formed, the board adopts a

resolution approving the district. RCW 57.16.062. Upon formation of the utility local

improvement district, the board of commissioners next files with the county treasurer a

roll levying assessments in the amount to be paid by special assessment against the

property situated within the improvement district in proportion to the special benefits to

be derived by the property therein from the improvements. RCW 57.16.062.

         Before approval of the special assessment roll, the water-sewer district must

publish notice in a newspaper and send notice to landowners fixing the time within which

protests must be filed with the utility district secretary against any assessments and fixing

a time when a hearing will be held by the commissioners on the protests. RCW

57 .16.070. At the hearing, the commissioners may correct, change, or modify the roll.

RCW 57.16.070. An objecting landowner may appeal the decision of the district board

of commissioners to the superior court within ten days after publication of a notice

confirming the assessment roll. RCW 57.16.090.

         RCW 57.16.100(1) prohibits any collateral attack on an assessment. The statute

reads:

                                              32
No. 34081-3-111
Darland v. Snoqualmie Pass Util. Dist.


               [T]he assessment roll and the confirmation thereof, shall be
       conclusive in all things upon all parties, and cannot in any manner be
       contested or questioned in any proceeding whatsoever by any person not
       filing written objections to such roll in the manner and within the time
       provided in this chapter.

We note that, at the time of adoption ofULID Nos. 4 and 7, Snoqualmie Pass Utility

District was only a sewer district, and, thus, another statute may have controlled

challenges to special assessments. We suspect, however, that the statute likely had a

similar time limit to special assessments challenges, and neither party forwards a

predecessor statute.

       Washington courts have reviewed and applied RCW 57.16.100 or similar statutes

to the end of summarily rejecting a landowner's challenge to a ULID assessment when

the challenger failed to object before the utility district board of commissioners or failed

to timely file an appeal in court. King County v. Mercer Island Sewer District, 69 Wn.2d

958 958-60, 421 P.2d 682 (1966); Wheeler v. Ronald Sewer District, 58 Wn.2d 444,447,

364 P.2d 30 (1961); In re Utility Local Improvement District No. 2, 5 Wn. App. 510, 513-

15, 488 P.2d 770 (1971). The court in Wheeler v. Ronald Sewer District mentioned the

policy considerations inherent in the statutes:

              The procedure ... is summary in nature, and the cause is given
       precedence over all civil causes pending except eminent domain
       proceedings and actions of forcible entry and detainer. It was the evident
       purpose of the legislature to provide a speedy and adequate remedy for any
       person feeling aggrieved by the decision of the commission and to prevent
       such a person from harassing the commission with lengthy litigation.


                                             33
No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


58 Wn.2d at 446. In King County v. Mercer Island Sewer District, the court observed:

              In it [Wheeler], this court simply gave the intended effect to a statute
       which is clear and unambiguous in its terms and the constitutionality of
       which has not been challenged. It does not deprive the property owner of a
       right of judicial review of administrative acts, but simply provides and
       requires that a certain procedure be followed in obtaining such a review.
       The requirement is reasonable on its face and serves an obviously
       legitimate purpose.

69 Wn.2d at 960.

       Michael and Myrna Darland seek to avoid application ofRCW 57.16.100 by

stating they do not challenge the validity of the UL IDs or the assessments levied

thereunder. The demand for a return of the assessments may be an argument alternative

to the Darlands' principal contention that the Snoqualmie Pass Utility District must

condemn access easements. Nevertheless, the Darlands want a refund of the assessments

on the basis of their land not being benefited by the ULIDs. The gist of their argument is

that the utility district erroneously assessed their land because the land receives no benefit

from the ULIDs.

       Washington courts may entertain a suit alleging jurisdictional defects in a local

improvement district proceeding despite the challenger ignoring statutory deadlines.

Tiffany Family Trust Corp. v. City of Kent, 155 Wn.2d at 234-35 (2005). If a property

owner fails to appeal a ULID assessment in a timely manner as prescribed by statute, the

owner can attack the assessment collaterally only if there is a jurisdictional defect in the

ULID proceedings. Little Deli Marts, Inc. v. City of Kent, 108 Wn. App. 1, 4-5, 32 P.3d

                                             34
No. 34081-3-111
Darland v. Snoqualmie Pass Util. Dist.


286 (2001 ); Patchell v. City of Puyallup, 3 7 Wn. App. 434, 441-42, 682 P .2d 913 (1984 ).

Case law limits jurisdictional defects to: ( 1) a violation of a constitutional right in the

assessment proceedings, (2) the improvement does not benefit the public, (3) the

improved property is not public property, and (4) the assessment roll includes property

not subject to assessment. Little Deli Marts, Inc. v. City ofKent, 108 Wn. App. at 5;

Patchell v. City of Puyallup, 37 Wn. App. at 442; Trautman, supra, 126-27 (1965).

Washington courts strictly construe such jurisdictional defects. Little Deli Marts, Inc. v.

City of Kent, 108 Wn. App. at 5.

       A jurisdictional challenge seeks to invalidate the entire underlying ULID. Tiffany

Family Trust Corp. v. City ofKent, 155 Wn.2d at 235-36 (2005). Challenges directed

toward the amount of a specific assessment or that the local government levied the

assessment without regard to benefits are not jurisdictional defects and must be brought

within the existing statutory framework. City ofLongview v. Longview Co., 21 Wn.2d

248, 252, 150 P.2d 395 (1944). Michael and Myrna Darland do not seek to invalidate

ULID Nos. 4 and 7. They claim their property reaps no benefit from the ULIDs.

Regardless of whether the Darlands sue for equitable estoppel, promissory estoppel,

unjust enrichment, breach of the implied covenant of good faith, impossibility of

performance, rescission, or restitution, they still argue a missing profit to their property.

       The Darlands characterize the imposition of a ten-day limitation on their challenge

as egregious because their predecessors could not have known that, within the ten-day

                                              35
No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


deadline, the Snoqualmie Pass Utility District never intended to fulfill its promise to

supply water and sewer service. We recognize the absurdity of requiring a legal

challenge to conduct before the conduct occurs. Nevertheless, the remedy for any breach

of a promise is not a refund of the assessment, but an order compelling the fulfillment of

the promise or an award of contract damages. Although the utility district uttered

comments years after the assessment that it might not provide services, the district now

remains willing for the Darlands to tie to the utility's lines. A 2005 court order affirmed

the utility district's obligation to supply water and sewer services.

       We also note that the conditions that erect difficulties for SnoCadia to benefit from

the ULIDs were also present at the time of the ULID assessments. In 1982 and in 1987,

the 76.8 acres lacked sixty-foot access easements. The same distances between the

Snoqualmie Pass Utility District water mainline termini and the sewer mainline termini to

the 76.8 acres existed then as they remain today. Michael Von Holnstein complained

about those very conditions to the board of commissioners in 1982 and 1987. If Count

Von Holnstein determined that the problematic circumstances resulted in a lack of

benefits to the 76.8 acres, he had the right to file a lawsuit challenging the ULIDs within

ten days of the respective assessments for the ULIDs.

       Because we affirm dismissal of Michael and Myrna Darland's request for

reimbursement of special assessments paid, we do not address Snoqualmie Pass Utility

District's contentions that the statute of limitations bars the claim and the Darlands lack

                                             36
No. 34081-3-III
Darland v. Snoqualmie Pass Util. Dist.


standing to assert the claim.

                                       CONCLUSION

       We affirm the trial court's 2005 and 2015 summary judgment orders. We remand

to the trial court for what, if any, further proceedings are appropriate.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                               F earir{g, C.

WE CONCUR:




Pennell, J.




                                              37
