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AGO 1951 No. 457 - February 26, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

FIRE PROTECTION DISTRICT ‑- AREA OF ANNEXED TO TOWN OF FOURTH CLASS ‑- REMOVAL FROM DISTRICT.

Where a town of the fourth class, the territory of which is not included within a fire protection district, annexes territory which is a part of such fire protection district, the annexed area is thereby removed from the fire protection district.

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                                                                February 26, 1951

Honorable Ernest C. Huntley
Chairman, Tax Commission
Insurance Building
Olympia, Washington                                                                                              Cite as:  AGO 49-51 No. 457

Dear Sir:

            We have your letter of February 8, 1951, requesting our opinion on the following question:

            Where a fire protection district surrounds a town of the fourth class, but does not contain areas within the town, and the town subsequently annexes territory included within the fire protection district, does the annexed area remain a part of the fire protection district?

            Our conclusion may be summarized as follows:

            Where a town of the fourth class, the territory of which is not included within a fire protection district, annexes territory which is a part of such fire protection district, the annexed area is thereby removed from the fire protection district.

                                                                     ANALYSIS

            Your question is one which recurrently poses considerable difficulty to us because of a lack of statutory law on the subject.  This state is faced with numerous problems of this kind as a result of the more than a score of lesser municipal corporations (as distinguished from counties, cities, towns,  [[Orig. Op. Page 2]] and school districts) which are created to furnish certain restricted services, such as fire protection, library, drainage, and sewer functions.  Such services are usually provided by a city or town, as being within its power, so the need for the special municipal corporation in a municipal area does not exist.  For this reason the statutes customarily provide for the creation of such districts outside the area of incorporated cities and towns.  Often a statute forbids annexation by such district of areas in a city or town.  However, no statute exists to forbid the annexation by the city or town of areas already in such lesser districts, nor even to provide as to the status of areas when so annexed.

            Such is our present problem.  Fire protection districts may be created in unincorporated areas, but may also incorporate to include territories containing towns of the fourth class.

            "Fire‑Protection Districts for the elimination of fire hazards and for the protection of life and property in territories outside of incorporated cities and towns and in territories including one or more cities of the fourth class are hereby authorized to be established as in this act provided."  Sec. 1, ch. 254, Laws of 1947 (5654-101 Rem. Supp. 1947)

            This can only be interpreted to mean that the whole of the town area may be included.  When contiguous areas containing a town of the fourth class are annexed, "theentire territory within such fourth class city must be annexed as a unit."  Sec. 5, ch. 254, Laws of 1947 (5654-116a Rem. Supp. 1947).  The legislative intent that a portion of a town should not be included in a fire protection district is apparent.  The reason therefor also seems obvious: towns have the power to provide fire protection services (Sec. 1, ch. 151, Laws of 1949; sec. 9175 Rem. Supp. 1949), and presumably will do so unless the same is provided by a fire protection district; to permit only a portion of a town to be within a fire protection district would mean that two different municipal corporations would provide the same service for the same area with two taxes being imposed.

            Nevertheless, no statutory provision has been made for the removal from a fire protection district of an area annexed to a town which is not already a part of such district.

             [[Orig. Op. Page 3]]

            We have previously ruled, in our opinion of September 8, 1949, to the Prosecuting Attorney of Benton County, a copy of which is enclosed, that where a city of the third class annexes area included within a fire protection district such annexed area isipsofacto removed from the latter district, this on the ground that cities of the third class may not be included in any event in fire protection districts.  That ruling is applicable here and is controlling unless the provision that a town of the fourth class may be incorporated originally or by annexation into a fire protection district requires a different result.  We do not think that it does.  For the reasons stated earlier, we believe that the legislative intent was thatall of a fourth class town could be included in a fire protection district, and the town's powers would be accordingly restricted, but that a part of the town could not be so included.  It follows that our opinion to the Benton County Prosecuting Attorney controls here.

            Areas of a fire protection district which are annexed by a town of the fourth class, which town is not included in such district, are automatically removed from the district.  Such areas, however, do remain liable to the district for taxation for debts outstanding at the time of removal.

            Your attention is directed to Senate Bill No. 221 currently before the 32nd Legislature dealing with this problem, the provisions of which correspond in part with the contents of this opinion.

Very truly yours,

SMITH TROY
Attorney General

C. JOHN NEWLANDS
Assistant Attorney General

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