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AGO 1972 No. 16 - July 26, 1972
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Slade Gorton | 1969-1980 | Attorney General of Washington

DISTRICTS ‑- SEWER ‑- AUTHORITY TO LEVY SPECIAL ASSESSMENTS ON COUNTY OWNED LANDS ‑- PROCEDURES FOR PROTEST

(1) A sewer district may levy special assessments for local improvements against county-owned real property which is specially benefited by the improvements.

(2) A county whose property has been placed on a sewer districts's special assessment rolls is precluded from objecting to the inclusion of such property on the basis of an asserted lack of special benefit where it has failed to comply with the procedures set forth in chapter 56.20 RCW for raising this issue, notwithstanding its nonreceipt of actual notice of the contents of the assessment roll, where the notice required by RCW 56.20.040 was properly given by the district.

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                                                                    July 26, 1972

Honorable C. Brent Nevin
Prosecuting Attorney
Clark County
301 Court House
Vancouver, Washington 98660

                                                                                                                 Cite as:  AGO 1972 No. 16

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on certain questions which, based upon subsequent discussions with you regarding the scope of your request, we paraphrase as follows:

            (1) May a sewer district levy special assessments for local improvements against county-owned real property which is specially benefited by the improvements?

            (2) If question (1) is answered affirmatively, is a county whose property has been placed on a sewer district's special assessment rolls now precluded from objecting to the inclusion of such property on the basis of an asserted lack of special benefit where it has failed to comply with the procedures set forth in chapter 56.20 RCW for raising this issue due to nonreceipt of notice properly given by the district under RCW 56.20.040?

             [[Orig. Op. Page 2]]   We answer both of these questions in the affirmative for the reasons set forth herein.

                                                                     ANALYSIS

            In considering your request it is important to note, preliminarily, the point made at the outset of AGO 59-60 No. 161 [[to Prosecuting Attorney, King County on November 25, 1960]](copy enclosed) to which you have referred in your letter; namely, that special assessments to fund local improvements are not to be regarded as a form of general "taxation."  Therefore, such provisions as those contained in RCW 84.56.050 and 84.56.400 relating to the removal of publicly owned properties from the general tax rolls are simply inapplicable where the discussion is concerned with special assessments on county or other publicly owned land.  The constitutional exemption of public property from general taxation, as set forth in Article VII, § 1 (Amendment 14) of the Washington constitution, does not prohibit special assessments against real property which is in state or local governmental ownership to the extent of correlative special benefits from a local improvement.  Accord,In re Howard Avenue North, 44 Wash. 62, 86 Pac. 1117 (1906).

            Question (1):

           In AGO 59-60 No. 161,supra, we concluded that even though there is no constitutional barrier to special assessments against either state or municipally owned real property, there must, nevertheless, be specific statutory authority in order to permit such assessments for local improvements to be levied against those lands which are owned by the state.  Accord,Spokane v. Security Savings Society, 46 Wash. 150, 89 Pac. 466 (1907); andRabel v. Seattle, 44 Wash. 482, 87 Pac. 520 (1906); see, also,State v. Olympia, 171 Wash. 594, 18 P.2d 848 (1933), andPaine v. State, 156 Wash. 31, 286 Pac. 89 (1930).  This rule, however, does not appear to be applicable to municipally owned lands.  See, AGO 59-60 No. 92 [[to Neuman H. Clark, State Representative on December 23, 1959]], copy enclosed, and cases cited therein ‑ including In re Howard Avenue North, supra, and Spokane v. Fonnell, 75 Wash. 417, 135 Pac. 211 (1913).  Unless specifically exempted by some statutory provision, these lands are subject to local improvement assessment in the same manner as all other property.

            In the case of county-owned lands such as you have described ‑ not only have we found no statutory exemption but, in addition, it is at least arguable that specificauthority (were such to be required) has been granted to levy sewer  [[Orig. Op. Page 3]] district special assessments against such lands.  The power of such districts to finance local improvements by this method is spelled out in RCW 56.20.010 as follows:

            "Any sewer district shall have the power to establish utility local improvement districts within its territory as hereinafter provided, and to levy special assessments under a mode of annual installments extending over a period not exceeding twenty years on all property specially benefited by any local improvement, on the basis of the special benefits to pay in whole or in part the damages or costs of any improvements ordered in such sewer district.  The levying, collection and enforcement of all public assessments hereby authorized shall be in the manner now and hereafter provided by law for the levying, collection and enforcement of local improvement assessments by cities of the first class, insofar as the same shall not be inconsistent with the provisions of this title.  The duties devolving upon the city treasurer under said laws are imposed upon the county treasurer of each county in which the real property is located for the purposes of this title.  The mode of assessment shall be in the manner to be determined by the sewer commissioners by resolution.  It must be specified in any petition for the establishment of a utility local improvement district and in the comprehensive scheme or plan or amendment thereto previously duly ratified at an election, that the assessments shall be for the sole purpose of payment into the revenue bond fund for the payment of revenue bonds.  Assessments in any utility local improvement district may be made on the basis of special benefits up to but not in excess of the total cost of any comprehensive scheme or plan payable by issuance of revenue bonds.  No warrants or bonds shall be issued in any such utility local improvement district, but the collection of interest and principal on all assessments in such utility local improvement district, when collected, shall be paid into the revenue bond fund."  (Emphasis supplied.)

             [[Orig. Op. Page 4]]

            Under RCW 35.44.140, relating to special assessments by cities of the first class, it is expressly provided that:

            "All lands held or owned by any county in fee simple, in trust, or otherwise within the limits of a local improvement district or utility local improvement district of a city or town shall be assessed and charged for their proportion of the cost of the local improvement in the same manner as other property in the district and the county commissioners are authorized to cause the assessments to be paid at the times and in the manner provided by law and the ordinances of the city or town.  This section shall apply to all cities and towns, any charter or ordinance provision to the contrary notwithstanding."

            Because of the cross-reference in RCW 56.20.010, supra, to the assessments procedures of such cities, it is thus to be seen that even if a sewer district were required to point to "specific statutory authority" in order to levy special assessments againstcounty-owned (like state‑owned) land, that authority has in all probability been granted.  Thus, your first question must be answered in the affirmative; county-owned lands are subject to sewer district special assessments.

            Question (2):

            As we understand it, your second question (which assumes the foregoing answer) is based on the following sequence of events.  In accordance with a preexisting comprehensive plan, your county condemned certain lands to be used strictly for road and highway purposes.  Evidence of the transfer of title was duly recorded in the office of the county auditor in accordance with RCW 36.22.010 and RCW 65.08.070.  Still later, at a time when the records of the county treasurer had not been yet updated to reflect the status of real property titles as shown on the current records of the auditor, notice of a proposed sewer district assessment roll ‑ including the property in question ‑ was given in the manner provided for in RCW 56.20.040, as follows:

            "Before the approval of the roll a notice shall be published once a week for two  [[Orig. Op. Page 5]] consecutive weeks in a newspaper of general circulation in the local district, stating that the roll is on file and open to inspection in the office of the secretary, and fixing the time, not less than fifteen or more than thirty days from the date of the first publication of the notice, within which protests must be filed with the secretary against any assessments shown thereon, and fixing a time when a hearing will be held by the commission on the protests.  The notice shall also be given by mailing at least fifteen days before the hearing, a similar notice to the owners or reputed owners of the land in the local districtas they appear on the books of the treasurer of the county in which the sewer district is located."  (Emphasis supplied.)

            Because, as is required by this statute, the notice therein called for was mailed to the owner of the property according to the treasurer's records rather than those of the auditor, it was the former owner of the subject lands and not the county which received this notice.  Thus, even though it might have had some basis for a formal objection to the inclusion of this property on the proposed assessment roll because of an asserted lack of special benefits,1/ the county did not file a timely protest to inclusion of the property on the district's assessment rolls for the particular improvement ‑ as is also called for in the statute.

             [[Orig. Op. Page 6]]

            Your question, in essence, is whether, on the basis of the foregoing facts, the county is now bound by RCW 56.20.070, which reads as follows:

            "Whenever any assessment roll for local improvements shall have been confirmed by the sewer commission of such sewer district as herein provided, the regularity, validity and correctness of the proceedings relating to such improvement, and to the assessment therefor, including the action of the sewer commission upon such 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 title, and not appealing from the action of the sewer commission in confirming such assessment roll in the manner and within the time in this title provided.  No proceedings of any kind shall be commenced or prosecuted for the purpose of defeating or contesting any such assessment, or the sale of any property to pay such assessment, or any certificate of delinquency issued therefor, or the foreclosure of any lien issued therefor."  (Emphasis supplied.)

            Without doubt the term "person" in the underscored portion of this statute includes a county.  King County v. Mercer Island Sewer District, 69 Wn.2d 958, 421 P.2d 682 (1966).  Moreover, although we sympathize with the equities of your situation, we do not believe that the facts above stated would provide any legal basis for denying the applicability of RCW 56.20.070 to a belated objection now to be made by your county in the case at hand ‑ for it seems clear that to us the legislature has contemplated the very kind of factual situation there involved and, has, nevertheless, made the approved assessment roll conclusive.

             [[Orig. Op. Page 7]]

            RCW 56.20.040,supra, provides, first, for notice by publication in a newspaper of general circulation in the local district and, secondly, for a similar notice to be mailed to the "owners or reputed owners of the land in the local district as they appear on the books of the treasurer . . ."  (Emphasis supplied.)  It is not disputed that these requirements were met in the instant case ‑ and thus we are not here concerned with a failure to comply with the procedural provisions relating to notice.  Compare,In re Local Imp. Dist. of Grandview, 57 Wn.2d 499, 358 P.2d 314 (1961).

            By reason of the two methods of giving notice which are provided for in the statute it appears that the legislature has anticipated that the "owner" to whom the notice is mailed may not be the actual current owner of the real property.  To cover these instances, it has provided the alternate notice by publication to affected persons.

            In interpreting a statute, if its language is clear and its meaning plain, the statute needs no construction and the courts will neither read into it things which are not there nor amend it by construction.  State ex rel. Tarver v. Smith, 78 Wn.2d 152, 470 P.2d 172 (1970); King County v. Seattle, 70 Wn.2d 988, 425 P.2d 887 (1967).  In addition, language in a given statute must be read in context with the entire act and construed in a manner consistent with the general purpose thereof.  Wilson v. Lund, 74 Wn.2d 945, 447 P.2d 718 (1968).  The purpose of the legislature in imposing the stringent requirements of RCW 56.20.070,supra, upon those contesting assessments upon their property is, obviously, to proclude any alteration in the "finally approved" assessment roll which would result in a later increased burden upon other property owners within the local improvement district.  And clearly, this purpose would be thwarted by a reading of the statute which would allow belated objections to be made to a sewer district's special assessment roll by property owners claiming no violation of the notice requirements of RCW 56.20.040, but only failure of those requirements to have actually delivered the intended  [[Orig. Op. Page 8]] message to them.2/

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

Very truly yours,

SLADE GORTON
Attorney General


THOMAS F. CARR
Assistant Attorney General


                                                         ***   FOOTNOTES   ***

1/In your letter, you have asked specifically whether assessments may be levied "on land previously condemned or purchased for the purpose of a county highway in accordance with a previously filed county comprehensive road plan."  While, arguably, county property to be used strictly for road purposes would not be "specially benefited" by a sewer district local improvement, in view of our disposition of your second question on a procedural rationale, we will not here enter into an extended discussion of the types of improvements which provide special benefit and the kinds of land which may be said to specially benefit from such proposed improvements.

2/Moreover, by virture of its failure to comply with the provisions of RCW 56.20.070, the county is, in addition, precluded from utilizing the provision for superior court review set forth in RCW 56.20.080 as well; for this provision also presumes that timely objections have been made by the property owner under RCW 56.20.040, supra.

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