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Bremer, LLC v. East Greenacres Irrigation Dist.

Supreme Court of Idaho

December 17, 2013

Coeur d'Alene, September 2013.
v.
EAST GREENACRES IRRIGATION DISTRICT, Defendant-Respondent. BREMER, LLC, an Idaho limited liability company, and KGG Partnership, Plaintiffs-Appellants,

Rehearing Denied Jan. 29, 2014.

Coeur d'Alene, September 2013.

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[Copyrighted Material Omitted]

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Bistline Law, PLLC, Coeur d'Alene, for appellants. Arthur M. Bistline argued.

James, Vernon & Weeks, P.A., Coeur d'Alene, for respondent. Susan P. Weeks argued.

BURDICK, Chief Justice.

Bremer, LLC and KGG Partnership (collectively " Bremer" ) appeal the Kootenai County district court's grant of summary judgment to East Greenacres Irrigation District (" EGID" ) and the district court's denial of several additional motions. This case arose after EGID looped its pressurized water system to a main water line extension that Bremer constructed to serve Bremer's subdivided land. Bremer claimed the extension was an illegal tax. The district court granted EGID summary judgment on the grounds that Bremer and EGID had an agreement under I.C. § 43-330A where Bremer was responsible for constructing water line improvements to serve their land. Bremer argues on appeal that the district court erred because there were genuine issues of material fact as to (1) whether the parties reached an agreement under I.C. § 43-330A and (2) whether EGID had authority to require Bremer to pay for the extension.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2008, Bremer extended a main water line on Hayden Avenue in order to serve land within McGuire Industrial Park. This land and the water line are within EGID. EGID operates a pressurized irrigation system that delivers irrigation and potable water to its members. Around two and a half years after Bremer built the extension, EGID extended the water line further to form a " loop" within EGID's water system.

McGuire Industrial Park is located in Post Falls, Idaho, on the southeast corner of the McGuire Road and Hayden Avenue intersection. In early 2008, the water line that served the Industrial Park ran north alongside McGuire Road. Near the intersection of McGuire Road and Hayden Avenue, the water line dead ended on Hayden Avenue at a parcel immediately west of Bremer's parcel. At that time, Bremer hoped to re-plat McGuire Industrial Park, but needed a " will serve" letter from EGID to get the required approval from the Panhandle Health District.

Bremer took several actions in March 2008 that related to the Hayden Avenue main water line and providing water service to a lot within McGuire Industrial Park that had frontage on both McGuire Road and Hayden Avenue. Initially Bremer's representative, Jim Nirk, verbally informed EGID that Bremer needed a connection to the water system for a foam materials building on that lot. Subsequently, EGID informed Bremer that it would only grant approval for a new connection after Bremer submitted engineered plans and obtained Department of Environmental Quality (DEQ) approval. Later that month Gary Bremer, the managing member of Bremer, LLC, met with EGID. EGID informed Bremer that the foam materials building needed the extension and hydrants with proper fire flow pressure.

After the meeting Bremer contacted their attorney, Brent Schlotthauer, about the perception that the main line extension was unrelated to their connection. Bremer thought EGID was requiring them to install this extension to receive water service. Based on that thought, Bremer believed EGID was coercing them to install the extension because the business would lose $6,000 a day without the water to operate. Schlotthauer then met with Ron Wilson, EGID's manager. Wilson told Schlotthauer that Bremer would not get water until they agreed to build the extension, citing EGID's by-laws as the legal authority. EGID's by-laws required that " [w]henever a landowner requests system additions or modifications, they shall be designed and constructed at the landowner's expense." EGID also had a policy that " [m]ainline extensions shall be required so as to provide for proper present or future circulation of water within the system, as determined by the board of directors." Schlotthauer then advised Bremer that although the extension may be illegal, the costs to the business meant the " only logical course was to capitulate to the demand, and then institute suit after the fact."

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In April 2008, Bremer recorded a re-plat of several lots within McGuire Industrial Park. This re-plat made Lot 1 smaller and gave Lot 2 an irregular L-shape with frontage on both McGuire Road and Hayden Avenue. Bremer got the required approval for this re-plat from the Panhandle Health District after EGID issued a " will serve" letter, stating that EGID had the capacity and intent to serve the Industrial Park and that a proposed main line extension would improve service. Bremer's engineer, Scott Jones, submitted plans to DEQ and EGID in May 2008 that proposed the Hayden Avenue main line extension. The next month DEQ disapproved the plan because Bremer needed to show that it met local fire flow requirements. DEQ granted approval later that month after the fire authority affirmed that the plan met those requirements.

Bremer then completed the extension. Jones submitted as-built project plans to EGID in September 2008. These plans showed that Bremer extended the main line along Hayden Avenue, adding two fire hydrants in the public right-of-way and a fire sprinkler line to the building. Bremer spent at least $48,340 on construction. After connection, DEQ approved the line.

About a year later, Bremer notified EGID that they were subdividing Lot 2 into Lots A and B, as well as proposing an improvement on Lot B. Lot A fronted McGuire Road and Lot B fronted Hayden Avenue. That re-plat was approved by Panhandle Health District based upon EGID's assurance in a " will serve" letter that the 2008 extension gave EGID the ability to serve the property. EGID later " looped the system" by connecting another main line to the Hayden Avenue extension. The general purpose of " looping" a system is to equalize pressure and provide increased flows. Thus, looping benefits all users and the entire water system. Bremer did not have to pay for " looping" the line.

Bremer filed their Complaint against EGID on March 4, 2011, alleging that Bremer's extension improvements were unrelated to Bremer's use of EGID's water system and thus an illegal tax. After EGID filed its Answer, Bremer filed a motion for summary judgment and supporting memorandum on November 16, 2011. The next day EGID filed its Motion for Summary Judgment, supporting memorandum, and affidavits from Ron Wilson and Jim Sappington. Wilson, EGID's manager, stated that a McGuire Road connection could not meet local fire flow requirements. EGID's Superintendent of Operations and Maintenance, Jim Sappington, stated that the only way to connect Bremer's building was through the Hayden Avenue main line extension. Bremer later submitted Bob Skelton's affidavit, which stated that Bremer's fire suppression system did not require an extension from Hayden Avenue.

After hearing oral argument and considering supporting affidavits, the district court granted EGID's Motion for Summary Judgment. The district court concluded that no genuine issues of material fact existed that would allow a reasonable jury to find that Bremer's main line extension was unrelated to Bremer's use of the water system. Because the " Idaho legislature intended that irrigation districts have the power to require landowners who subdivide to pay for the costs extending the pressurized water system to the improved parcel," the district court found Bremer reached an agreement with EGID under I.C. § 43-330A. Thus, the court also held that the extension was not an illegal tax.

Bremer then filed a motion for reconsideration. Bremer argued that (1) EGID could only require subdividing landowners to pay for an extension when the parcel lacked infrastructure for the proper distribution of water and the improvements were directly related to the subdivision and (2) Wilson, Sappington, and Skelton's affidavits created a material question of fact on whether Bremer needed the extension. The district court denied the motion, finding that Bremer presented no new issues of fact or law.

Additionally, Bremer filed a Motion to Alter or Amend the Judgment and/or to Set Aside the Judgment and to Consider Additional Evidence with a memorandum and affidavits from Gary Bremer and Brent Schlotthauer. On April 27, 2012, the district court heard and denied the motion. Bremer timely filed an amended notice of appeal.

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II. ISSUES ON APPEAL


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