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AGO 1974 No. 2 - January 18, 1974
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Slade Gorton | 1969-1980 | Attorney General of Washington

CITIES AND TOWNS ‑- ASSESSMENTS ‑- LOCAL IMPROVEMENT DISTRICTS ‑- OPTIONAL MUNICIPAL CODE

A city operating under the optional municipal code (Title 35A RCW), in ordering a local improvement for which there are to be levied and collected special assessments on property specifically benefited thereby, may provide as a part of the ordinance creating the local improvement district that the collection of any assessments levied therefor may be deferred until a time previous to the dissolution of the district for those economically disadvantaged property owners described in RCW 35.43.250.

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                                                                 January 18, 1974

Municipal Research Council
4719 Brooklyn Avenue N.E.
Seattle, Washington 98105
Attention:  Dr. Ernest H. Campbell, Agent

                                                                                                                   Cite as:  AGO 1974 No. 2

Gentlemen:

            This is written in response to your recent letter requesting our opinion on a question which we paraphrase as follows:

            May a city operating under the optional municipal code (Title 35A RCW), in ordering a local improvement for which there are to be levied and collected special assessments on property specifically benefited thereby, provide as a part of the ordinance creating the local improvement district that the collection of any assessments levied therefor may be deferred until a time previous to the dissolution of the district for those economically disadvantaged property owners described in RCW 35.43.250?

            We answer this question in the affirmative for the reasons set forth in our analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            By its enactment of § 2, chapter 137, Laws of 1972, the legislature added the following new section to chapter 35.43 RCW:

            "Any city of the first class in this state ordering any local improvement upon which shall be levied and collected special assessments on property specifically benefited thereby may provide as part of the ordinance creating any local improvement district that the collection of any assessment levied therefor may be deferred until a time previous to the dissolution of the district for those economically disadvantaged property owners or other persons who, under the terms of a recorded contract of purchase, recorded mortgage, recorded deed of trust transaction or recorded lease are responsible under penalty of forfeiture, foreclosure or default as between vendor/vendee, mortgagor/mortgagee, grantor and trustor/trustee and grantee, and beneficiary and lendor, or lessor and lessee for the payment of local improvement district assessments, and in the manner specified in the ordinance qualify for such deferment, upon assurance of property security for the payment thereof."

            The essence of your question is whether the authority granted by this statute, now codified as RCW 35.43.250, runs not only to cities of the first class but to cities organized and operating under the optional municipal code as well.  We believe that it does.

            On its face, of course, RCW 35.43.250 is only applicable to cities of the first class because that is what the statute says.  When we turn, however, to the various provisions of the optional municipal code1/ we find, first, in  [[Orig. Op. Page 3]] RCW 35A.43.010, the following provision:

            "Chapters 35.43, 35.44, 35.45, 35.47, 35.48, 35.49, 35.50, 35.53, 35.54, 35.55, and 35.56 RCW all relating to municipal local improvements and made applicable to all incorporated cities and towns by RCW 35.43.030 are hereby recognized as applicable to all code cities, and the provisions thereof shall supersede the provisions of any charter of a charter code city inconsistent therewith.  The provisions of the chapters named in this section shall be effective as to charter code cities to the same extent as such provisions are effective as to cities of the first class, and all code cities may exercise, in the manner provided, any authority therein granted to any class of city."

            In addition to this specific provision, moreover, there are three other somewhat more general sections in the optional code to be noted.  The first of these is RCW 35A.01.010 which provides, with respect to the overall purpose of the code, as follows:

            "The purpose and policy of this title is to confer upon two optional classes of cities created hereby the broadest powers of local self-government consistent with the Constitution of this state.  Any specific enumeration of municipal powers contained in this title or in any other general law shall not be construed in any way to limit the general description of power contained in this title, and any such specifically enumerated powers shall be construed as in addition and supplementary to the powers conferred in general terms by this title.  All grants of municipal power to municipalities electing to be governed under the provisions of this title, whether the grant is in specific terms or in general terms, shall be liberally construed in favor of the municipality."

             [[Orig. Op. Page 4]]

            Consistent with this purpose, RCW 35A.11.020 then provides that:

            ". . .  The legislative body of each code city shall have all powers possible for a city or town to have under the Constitution of this state, and not specifically denied to code cities by law. . . ."

            And finally, in like manner RCW 35A.21.160 states that:

            "A code city organized or reorganized under this title shall have all of the powers which any city of any class may have and shall be governed in matters of state concern by statutes applicable to such cities in connection with such powers to the extent to which such laws are appropriate and are not in conflict with the provisions specifically applicable to code cities."

            Based upon these provisions there can be no doubt that whenever the legislature affirmatively grants a power to any particular, numerically designated, class of cities in this state (i.e., first, second, third or fourth class), the power thus granted runs to all cities organized and operating under the optional municipal code as well ‑ unless, of course, such cities are specifically excluded by the terms of the legislative enactment itself.  Accord, AGO 1972 No. 24 [[to Municipal Research Council, on October 25, 1972]], copy enclosed.  Thus, although your immediate question is directly covered by the express provisions of RCW 35A.43.010,supra, it would seemingly also be answerable in the affirmative, even without this specific cross-reference statute, because of the overall status of code cities in accordance with the other three sections of the optional code which we have quoted above.

            In so concluding we are, of course, quite aware of AGO 1973 No. 15 [[to Christopher T. Bayley, Prosecuting Attorney, King County on June 26, 1973]], a copy of which is also enclosed. In that recent opinion this office advised that the provisions of § 7, chapter 218, Laws of 1973, 1st Ex. Sess., under which certain gambling activities licensed by the state gambling commission may be prohibited by a city of the first class, do not extend to cities which have adopted the optional  [[Orig. Op. Page 5]] municipal code.  As explained on pages 5 and 6 of that opinion, however, we simply did not view the statute there involved, which provides that:

            ". . . any [gambling] license issued under authority of this section shall be legal authority to engage in the gambling activity for which issued throughout the incorporated and unincorporated areas of any county, unless a county,or any first class city located therein with respect to such city, shall prohibit such gambling activity: . . ."  (Emphasis supplied.)

            as a grant of authority by the legislature.  Instead, we viewed it as a qualified preemption by the state of the power to license or prohibit certain gambling activities throughout the state ‑ the qualification upon the preemption being that it does not preclude a county, or a first class city, from exercising its preexisting "police power" under Article XI, § 11 of the state Constitution2/ with respect to the regulation or prohibition of state licensed gambling activities therein.

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

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Chapter 119, Laws of 1967, 1st Ex. Sess., codified as Title 35A RCW.

2/This provision of the constitution states that:

            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."

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