Skycorp v. King Cty.

543 P.3d 223

SKYCORP LTD, Appellant,

v.KING COUNTY, a municipal subdivision of the State of Washington, Respondent.

No. 57452-7-II

Court of Appeals of Washington, Division 2.

Filed February 13, 2024

Appeal from Pierce County Superior Court, Docket No: 21-2-04570-9, Honorable Gretchen M. Leanderson, Judge.

Richard M. Stephens, Stephens & Klinge LLP, 10900 Ne 4th St. Ste. 2300, Bellevue, WA, 98004-5882, for Appellant.

Stephanie D. Knightlinger, Russell Clayton Prugh, King County Prosecuting Attorney’s Office, 701 5th Avenue, Suite 600, Seattle, WA, 98104, Jason R. Donovan, P. Stephen Dijulio, Foster Garvey PC, 1111 3rd Ave. Ste. 3000, Seattle, WA, 98101-3296, for Respondent.

PUBLISHED OPINION

Glasgow, C.J.

¶1 The King County Code (KCC) 10.30.020 requires that anyone who generates, handles, or collects mixed or nonrecyclable construction and demolition waste within King County must dispose of such waste in county designated facilities. King County (the County) has designated facilities in King, Pierce, and Snohomish counties for this purpose. In violation of the code, SkyCorp disposed of mixed construction and demolition waste that was generated and then collected within King County at a licensed, but not designated, facility in Yakima County. In response to this violation of KCC 10.30.020, the County issued a citation and imposed a one hundred dollar fine.

¶2 SkyCorp does not dispute that it violated the code. Rather, SkyCorp sued the County arguing that KCC 10.30.020, as applied in this case, is an unconstitutional exercise of the County’s police power beyond its jurisdictional borders. SkyCorp also asserts that the code is an unconstitutional restriction on SkyCorp’s purported fundamental right to freely dispose of their property under the privileges and immunities clause of the Washington Constitution. The superior court granted summary judgment in favor of the County and dismissed the case. SkyCorp appeals.

¶3 On appeal, SkyCorp argues that the County’s application of KCC 10.30.020 is a violation of two provisions of the Washington Constitution: article XI, section 11, addressing local governments’ police power to impose local sanitary regulations, and article I, section 12, the privileges and immunities clause. Furthermore, SkyCorp argues that the trial court improperly admitted into the record, and then relied on, a declaration by the County’s construction and demolition program manager in reaching its summary judgment decision.

¶4 First, we affirm the trial court’s decision to grant summary judgment to the County as to SkyCorp’s article XI, section 11 claim. The code is local in nature because it regulates the disposal of waste generated and collected within King County. The code is not contrary to state statutes, and the code is a reasonable exercise of the County’s police power to regulate sanitation—a power expressly granted to local governments in the Washington Constitution. Thus, the County’s enforcement action against SkyCorp did not violate article XI, section 11 in this case.

¶5 Second, we affirm the trial court’s decision to grant summary judgment to the County in regard to SkyCorp’s privileges and immunities claim. KCC 10.30.020, as applied to SkyCorp, does not violate the privileges and immunities clause of the Washington Constitution because SkyCorp does not pos- sess a fundamental right to dispose of waste as it desires without county regulation.

¶6 Third, the trial court did not abuse its discretion when it denied SkyCorp’s oral motion to strike the county program manager’s declaration. Moreover, any error was harmless because we need not rely on the declaration to resolve this case.

FACTS

I. Factual Background

¶7 King County implemented a Comprehensive Solid Waste Management Plan through Title 10 of the King County Code. As part of this plan, the County sought to ensure the proper disposal of nonrecyclable construction and demolition waste, to increase the amount of construction and demolition waste that is recycled, to conserve energy and natural resources, to protect the environment, and to preserve space at existing landfills. See KCC 10.08.080; KCC 10.30.010; KCC 10.14.020. To achieve these objectives, the County adopted a solid waste disposal code that regulates "all solid waste either generated, collected[,] or disposed, in unincorporated King County." KCC 10.08.020(A). The County’s code makes it unlawful to deliver mixed and nonrecyclable construction and demolition waste to non-designated facilities. KCC 10.08.020(B)–(D).

¶8 The County’s Comprehensive Solid Waste Management Plan describes a process for designating facilities to receive construction and demolition waste generated or collected in King County. Dep’t of Nat. Res. & Parks, King County, 2019 Comprehensive Solid Waste Management Plan 4-36 to 4-37 (Nov. 2019) (CSWMP).¹ The implementing code requires that "[a]ll generators, handlers and collectors of mixed [construction and demolition] waste or nonrecyclable [construction and demolition] waste generated within the county’s jurisdiction shall deliver, or ensure delivery to, a designated [construction and demolition waste] receiving facility" specified by the County. KCC 10.30.020(A)(1). These requirements apply only to mixed and nonrecyclable construction and demolition waste whereas recyclable construction and demolition materials may be disposed of at any recycling facility. KCC 10.30.020(C).

¶9 The County has designated eight disposal sites that are within its territorial borders, as well as six facilities in adjacent Snohomish County and Pierce County. CSWMP, supra, at 4-36 to 4-37 (listing designated disposal facilities as of July, 2018). The County argues that the designated facilities are specifically designed to handle mixed and nonrecyclable construction and demolition waste.

¶10 SkyCorp does not dispute that it collected construction and demolition waste from sites in King County and disposed of the waste at a non-designated facility in Yakima County in violation of KCC 10.30.020. As a result, the County issued SkyCorp a citation and fine in the amount of one hundred dollars.

II. Procedural History

¶11 In response to this citation, SkyCorp sued the County in federal district court, asserting both federal and state law claims. SkyCorp asserted that the County’s solid waste disposal code violated the commerce clause and due process clause of the United States Constitution as applied in this case. The U.S. District Court for the Western District of Washington dismissed the federal claims with prejudice. The Ninth Circuit affirmed. SkyCorp. Ltd. v. King County, 859 F. App’x 780 (9th Cir. 2021).

¶12 The U.S. District Court dismissed SkyCorp’s state law claims without prejudice and SkyCorp subsequently sued the County in superior court. SkyCorp argued that the County’s citation is an unconstitutional application of King County’s police power under article XI, section 11 of the Washington Constitution, which expressly grants municipal governments the police power to regulate sanitation so long as the regulations are local, reasonable, and do not conflict with state law.

SkyCorp also argued that KCC 10.30.020 violates article I, section 12, the privileges and immunities clause of the Washington Constitution, by "den[ying] SkyCorp the privilege of disposing of its property at any location of its choice." Clerk’s Papers (CP) at 7. In making this claim, SkyCorp argued that it has a constitutionally protected property interest in the construction and demolition waste that it is disposing of.

¶13 The County presented several reasons justifying KCC 10.30.020 and its application to SkyCorp’s conduct. The County asserted that the code maximizes the amount of construction and demolition waste that is recycled and ensures the safe disposal of waste that is nonrecyclable. In doing so, the County argued, the code "preserves landfill capacity, whether it’s the landfills in King County or the regional landfills themselves. It creates jobs. It saves energy by reducing the amount of raw materials that are needed to create new products." Verbatim Rep. of Proc. (VRP) at 10. Furthermore, the County asserted that the code "generates revenue for monitoring and enforcement" and "protects King County and King County residents against hazardous waste." Id. Benefits to King County and its residents are not only realized when in-county facilities are designated to receive King County’s construction and demolition waste. Rather, the County argued that revenue generated from any designated facility goes directly into funding the County’s solid waste disposal plan and will ensure that construction and demolition waste generated within King County is disposed of in compliance with the County’s strict environmental standards.

¶14 During the hearing on the County’s motion for summary judgment, SkyCorp’s counsel raised an oral motion to strike the declaration of the County’s construction and demolition manager. The court declined to strike the declaration from the record, instead promising to "take [the oral motion to strike] into consideration in terms of weight given." VRP at 14. The superior court granted the County’s motion for summary judgment. The summary judgment order lists the declaration of the County’s construction and demolition manager as one of the documents that the court considered. SkyCorp appeals.

ANALYSIS

I. Standard of Review

[1, 2] ¶15 We review a trial court’s decision to grant summary judgment de novo. Wolf v. State, 2 Wash.3d 93, 102, 534 P.3d 822 (2023). Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id.; CR 56(c). We engage in the same inquiry as the trial court, treating all facts and reasonable inferences in the light most favorable to the nonmoving party. Mason v. Mason, 19 Wash. App. 2d 803, 819, 497 P.3d 431 (2021). Summary judgment is appropriate when the plaintiff has...