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AGLO 1975 No. 17 - February 21, 1975
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

COUNTIES ‑-  TAXATION ‑- REAL ESTATE ‑-TAX TITLE LAND ‑- SANITARY LAND FILL ‑- COUNTY USE OF TAX TITLE LAND

(1) The legislative authority of a county is not first required to convey tax title land to itself in its proprietary capacity under RCW 36.35.030 before exchanging such property for other land under RCW 36.35.050.

(2) Subsequent tax revenues derived from tax title property which was conveyed to private ownership under RCW 36.35.050 are to be distributed to the taxing districts in which the land is situated.

(3) A county is not required by RCW 36.35.030 to operate a sanitary land fill on former tax title land at a profit.

                                                                   - - - - - - - - - - - - -

                                                                February 21, 1975

Honorable Curtis M. Janhunen
Prosecuting Attorney
Grays Harbor County
P.O. Box 529
Montesano, Washington 98563                                                                                                               Cite as:  AGLO 1975 No. 17

Attention:  Mr. Dennis Colwell

Dear Sir:

            By letter previously acknowledged you asked for our opinion on several questions pertaining to use of tax title lands under chapter 36.35 RCW.  We paraphrase your request as follows:

            Where a county exchanges tax title lands for other lands in private ownership, pursuant to RCW 36.35.050, for the purpose of operating a sanitary land fill on the site so acquired:

            (1) Is the legislative authority of the county first required to convey to itself in its proprietary capacity, under RCW 36.35.030, the tax title land involved in the exchange?

            (2) In what manner are subsequent tax revenues derived from the tax title property which was conveyed to private ownership to be distributed where the previous tax title lands and the lands received by the county in exchange lie in different taxing districts?

            (3) Is the county required by RCW 36.35.030 to operate the sanitary land fill on a profit making basis?

            We answer parts (1) and (3) of this question in the negative and part (2) as set forth in our analysis.

                                                                     ANALYSIS

            Your questions refer to two sections contained in chapter 36.35 RCW, which codified the provisions of chapter 150, Laws of 1972, Ex. Sess.  That chapter was enacted with the following expressed purposes, as set forth in § 1 of the act (RCW 36.35.010):

             [[Orig. Op. Page 2]] "The purpose of this chapter is to increase the power of county legislative authorities over tax title lands.  The legislative authority of each county shall have the power to devote tax title lands to public use under its own control or the control of other governmental or quasi-governmental agencies, to exchange such lands for lands worth at least ninety percent of the value of the land exchanged, and to manage such lands to produce maximum revenue therefrom in the manner which derives the most income from such lands.  The further purpose of this chapter is to relieve the courts of the obligation of supervising the county legislative authorities in the management and disposition of tax title lands."

            The term "tax title lands," as defined in § 2 (RCW 36.35.020) means:

            ". . . any tract of land acquired by the county for lack of other bidders at a tax foreclosure sale."

            The sections to which you have referred are §§ 4 and 6, the first of which, now codified as RCW 36.35.030, provides that:

            "Whenever the legislative authority of any county deems tax title lands valuable for public use it shall have authority to convey such lands to the county in its proprietary capacity, free from any trust, upon payment by the county of the amount of delinquent taxes, and interest thereon, owing on the land at the time the county acquired same at tax foreclosure sale:  Provided, That in the event such lands shall be subsequently sold or leased, or income derived therefrom, the proceeds shall first go to reimburse the county for the cost of such sale or lease, for the cost of any improvements placed thereon  [[Orig. Op. Page 3]] at county expense, and the costs of managing such lands, with the balance of such proceeds to be distributed in the same manner as general taxes collected in the year in which such moneys are received by the county."

            Section 6, now RCW 36.35.050, then says:

            "The legislative authority of a county shall have authority to exchange parcels of tax title lands for lands of substantially the same market value with other governmental or municipal agencies or private parties or corporations by private negotiation and such lands received by the county in exchange may be held and managed in the same manner as the lands conveyed in exchange by the county, and the proceeds from any subsequent sales or rentals of such land by the county shall be applied and distributed in the same manner as would have been done had such proceeds and income been received by the county for the lands conveyed in exchange by the county:  Provided, That before any such exchange is made the lands to be exchanged by the county and the lands to be received by the county shall be appraised by two appraisers appointed by the court for such purpose:  Provided further, That both appraisers agree that the land to be received by the county in such exchange is worth at least ninety percent of the value of the land to be given by the county in such exchange."

            Separating these two sections of the act is a third, § 5, now RCW 36.35.040, to which we must also make note.  This section provides that:

            "The legislative authority of a county shall have authority to manage tax title lands acquired by it and to make improvements thereon which the legislative authority deems will enhance the value of such lands, or enhance the amount of income to be derived therefrom.  Any proceeds received from the rental of such lands by the legislative authority shall first be used to reimburse the legislative authority for costs of management and costs  [[Orig. Op. Page 4]] of rental, and costs of any improvements to such lands paid for by the county and after such reimbursements have been made the balance shall be distributed in the same manner as general taxes collected in the year in which such proceeds are received by the county."

            The first part of your question involves the interrelationship between the initial two of these three sections.  In order to utilize RCW 36.35.050 you ask whether a county is first required to convey the tax title land thereby to be exchanged to itself in its proprietary capacity under RCW 36.35.030.

            The guiding rule and major goal in any inquiry into the construction or interpretation of a statute is to ascertain and give effect to the legislature's intention.  Krystad v. Lau, 65 Wn.2d 827, 400 P.2d 72 (1965).  In arriving at the intent of the legislature, one's first resort must be to the content and subject matter of the legislation because the intention of the legislature must be deduced, if possible, from what it has said.  Hatzenbuhler v. Harrison, 49 Wn.2d 691, 306 P.2d 745 (1957).  Legislative intent is to be determined from reading the act itself, construing terms and provisions therein according to their ordinary meaning, and giving consideration to the purposes and objects sought to be accomplished by the legislative enactment.  State ex rel. State Ret. Bd. v. Yelle, 31 Wn.2d 87, 195 P.2d 646 (1948).  And, by the same token, language is not to be added to a statute by interpretation unless such an addition is imperatively required to make it a rational statute.  McKay v. Dept. of Labor and Industries, 180 Wash. 191, 39 P.2d 997 (1934).

            In applying these rules it is again to be noted from § 1, supra, that the purpose of the instant act is to give counties the following three new alternatives for the use of tax title lands:  (1) "public use under [the counties'] own control or the control of other governmental or quasi governmental agencies,"  (2) "to exchange such lands," and (3) "to manage such lands to produce maximum revenue."  Then, after setting out these purposes, the act goes on in its ensuing sections to detail the procedures applicable for each of these uses.  RCW 36.35.030 deals with public use; RCW 36.35.040 with management by the county; and RCW 36.35.050 with exchanges for other lands.

             [[Orig. Op. Page 5]]   In each instance, however, the act appears to recognize that there are two separate monetary concerns any time that tax title land is involved:

            (1) In what manner are the delinquent taxes which are past due to be paid ‑ so as to enable not only the county itself but all of the various taxing districts which share in those taxes to receive what is, in effect, due and owing to them?

            (2) In the event that the property in question is taken off the tax rolls as a consequence of its acquisition by a tax exempt public body (such as the county itself), in what manner are the various taxing districts' resulting losses offuture property taxes to be made up?

            In connection with the first alternative (RCW 36.35.030) the act deals with these concerns by (a) requiring the county to pay all delinquent taxes in order to acquire the land in its proprietary capacity and (b) thereafter requiring the county to distribute any net income (over and above the costs of sale or management) derived from the land to the various taxing districts in which the land is located ". . . in the same manner as general taxes collected in the year in which such moneys are received by the county."

            In the second case, involving management by the county, the property retains its tax title status with the result that the payment of delinquent taxes is deferred until the property is ultimately sold.  In the meantime, however, RCW 36.35.040 deals with the problem of lost current and future tax revenues in basically the same manner as does RCW 36.35.030.

            This brings us to the third case ‑ an exchange under RCW 36.35.050 such as is contemplated by your question.  Clearly there is nothing in this statute which would indicate a legislative intent to carry over the conditions prescribed by RCW 36.35.030 for a conveyance by a county to itself when the county, instead, is exercising the authority granted in RCW 36.35.050.  At first blush, however, it might appear to be necessary to read such a requirement into the statute by implication because, although RCW 36.35.050 also contains express provisions to cover the problem of lost current  [[Orig. Op. Page 6]] and future tax revenues1/ it is seemingly silent with respect to the payment of delinquent past taxes.  Yet upon closer analysis it is not ‑ for the statute also states that:

            ". . . such lands received by the county in exchange may be held and managed in the same manner as the lands conveyed in exchange by the county . . ."

            What this means, it seems to us, is that when RCW 36.35.050 is utilized through an exchange of landstill classified as tax title land at the time of the exchange, the new land acquired as a result of the exchange becomes, itself, tax title land.  At this point, then, in order to use the new land in its proprietary capacity (as for a county sanitary land fill) the county must pay the delinquent taxes on the original tax title land and make the conveyance provided for in RCW 36.35.030.  Those taxes, when paid, will go to the taxing districts in which the original land was located ‑ there being no delinquent taxes on the acquired land.  But thereafter, if the new land is sold or otherwise produces income, the resulting net proceeds are to be paid to the taxing districts in which the new land is located, as required by RCW 36.35.030, as if that land had truly been the original tax title land involved.

            To conclude otherwise would be to allow the county to benefit some taxing districts at the expense of others.  This is not consistent with the pattern in this legislation of protecting the rights of the various districts while at the same time giving the county more flexibility in dealing with tax title property.

            This answer to the first part of your question ‑ a negative answer as that question has been paraphrased ‑ leads us to the second part; i.e., in what manner are subsequent tax revenues derived from the tax title property which was conveyed to private ownership to be distributed where the previous tax title lands and the lands received by the county in exchange lie in different taxing districts?

             [[Orig. Op. Page 7]]   Presumably, this question arises because the taxing districts encompassing the newly acquired land will have lost a portion of their future taxing power by the county's exercise of RCW 36.35.050.  In our opinion, however, the legislature's solution was to give those districts a claim against any net income from the new land ‑ and not to create any kind of reverse claim on their part to current and future taxes levied against the old.  We cannot read such a contrary provision into the act for it is not imperative to make it a rational statute.  McKay v. Dept. of Labor and Industries,supra.  As previously indicated, the newly acquired land takes on the character of tax title land.  As such, the county may sell it, manage it, exchange it again or, as in the present case, convert it to public use under RCW 36.35.030.  In each case the statute providing the authority for the action taken by the county provides for treatment of the income, if any, resulting from its use thereafter.  In the situation presented by your question, RCW 36.35.030 provides that after expenses, etc., the income is ". . . to be distributed in the same manner as general taxes . . ."  This analysis leaves all the parties in the same position as they would have occupied if the county had merely purchased the acquired land and disposed of the tax title land separately.  Accordingly, it adds nothing to the rational operation of the act to read into RCW 36.35.050 a claim by the taxing districts in which the acquired land is located for future tax revenue from the conveyed land.

            Finally, for ease of reference, the third part of your question asks:

            Is the county required to operate the sanitary land fill on a profit making basis?

            This question apparently arises from the last proviso in RCW 36.35.030 which reads:

            ". . .  Provided, Thatin the event such lands shall be subsequently sold or leased, or income derived therefrom, the proceeds shall first go to reimburse the county for the cost of such sale or lease, for the cost of any improvements placed thereon at county expense, and the costs of managing such lands, with the balance of such proceeds to be distributed in the same manner as general taxes collected in the year in which such moneys are received by the county."  (Emphasis supplied.)

             [[Orig. Op. Page 8]]   We believe that the underscored language of this proviso answers that question.  The proviso was not intended to require the land to produce income but only to set forth what to do with any income in fact produced.  Thus, it is our opinion that the act does not require a sanitary land fill operated on exchanged land to be operated at a profit because of any provision in this chapter.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

RODNEY J. CARRIER
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/". . . the proceeds from any subsequent sales or rentals of such land by the county shall be applied and distributed in the same manner as would have been done had such proceeds and income been received by the county for the lands conveyed in exchange by the county: . . ."

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