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AGO 1965 No. 36 - September 03, 1965
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS ‑- DRAINAGE ‑- COMMISSIONS ‑- ANNUAL MAINTENANCE ASSESSMENTS ‑- LEVY ‑- DETERMINATION OF AMOUNT

1. It is the responsibility of the board of commissioners of a drainage district operating pursuant to chapter 85.06 RCW to designate the amount of the assessment to be levied against each parcel of land within the district according to present ownership.

2. If a redetermination of benefits has not been accomplished pursuant to RCW 85.06.130, or an alternative statutory means of providing funds for drainage facility maintenance has not been adopted, maintenance assessments designated by the drainage district commissioners shall be computed on the basis of the benefits in each case as determined by the superior court jury pursuant to RCW 85.06.120.

3. Assuming that the original superior court determination of benefits under RCW 85.06.120 continues as an accurate reflection of the benefits derived from the drainage district system despite changes in size of ownership and land use, and that no alternative means of acquiring maintenance funds has been adopted, the district board of commissioners in computing maintenance assessments "in proportion to the maximum benefits assessed" as required by RCW 85.05.270 should apportion the individual assessments on the basis of the ratio that the area of each present individual ownership bears to the total acreage of the originally considered parcel.

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                                                               September 3, 1965

Honorable L. Edward Brown
Prosecuting Attorney
Grays Harbor County
417 Finch Building
Aberdeen, Washington

                                                                                                                Cite as:  AGO 65-66 No. 36

Dear Sir:

            By letter previously acknowledged you requested the advice of this office on three questions which we have paraphrased as follows:

            1. What public official or board is required to designate the amount of the annual maintenance assessment to be levied against each parcel of land in a drainage district organized and operating pursuant to chapter 85.06 RCW?

             [[Orig. Op. Page 2]]

            2. In designating the amount of such annual maintenance assessment, must the public official or board named in answer to question 1, base its determination thereof on the benefits assessed by a superior court jury pursuant to RCW 85.06.120?

            3. If the answer to question 2 is "yes," does the public official or board named in answer to question 1, in determining the annual maintenance assessment to be levied against present individual land ownerships which make up portions of a parcel of land originally determined by the superior court jury to be uniformly benefited, apportion the assessment on the basis of the ratio that the area of each present individual ownership bears to the total acreage of the originally considered parcel?

            We answer your questions in the following analysis.

                                                                     ANALYSIS

            A drainage district formed under chapter 115, Laws of 1895, as amended, (now codified in chapter 85.06 RCW), has exclusive charge of the maintenance of the drainage system constructed by the district.  RCW 85.06.080.  To finance its operation the district is authorized to make annual maintenance assessments, which are to be levied against the land in the district in proportion to the maximum benefits derived from the drainage system operated by the district.  RCW 85.05.270.  See also, RCW 85.06.120, RCW 85.06.130, and for a general discussion, 48 Am.Jur., Special Assessments, § 21, 580 (1943).

            Question 1.  You first ask what public official or board is responsible for determining the amount of the annual maintenance assessment to be levied against the lands of the district according to present ownerships.

            The determination of the amount required for maintenance periods, and the levying and collection thereof are controlled primarily by statute.  McDougall v. Bridges, 52 Wash. 396, 100 Pac. 835 (1909; see also, 17A Am.Jur., Drains and Sewers, § 69 et seq., 486 (1957).  RCW 85.05.270 is the basic statutory provision relating to assessments for maintenance of drainage district facilities.  In pertinent part it provides:

            "On or before the first . . . Monday in October of each year thedrainage commissioners shall, make and certify to the county auditor an estimate of the cost of maintenance and repair of the improvement for the ensuing year.  Theamount thereof shall be levied against the land in the district in proportion to the maximum benefits assessed, and shall be added to the general taxes and collected therewith.  If such estimate of the cost of maintenance and repair against any tract or contiguous  [[Orig. Op. Page 3]] tracts owned by one person or corporation is less than two dollars, then the county auditor shall levy such a minimum amount of two dollars against such tract or contiguous tracts, and upon the collection thereof as herein provided shall pay all sums collected into the maintenance and/or repair fund of the district. . . ."  (Emphasis supplied)

            While the meaning of this section is not completely free from ambiguity, an examination of the statute, especially noting the portions we have emphasized, provides the answer to your question.  It should be first noted that RCW 85.05.270, supra, requires the drainage commissioners to "make and certify to the county auditor an estimate of the cost of maintenance and repair" of the drainage facility for the ensuing year.  The statute then states that the "amount thereof" i.e., the amount of the estimate of the cost of maintenance and repair, "shall be levied against the land in the district in proportion to the maximum benefits assessed."  Of utmost significance the section then continues, "If such estimate of the cost of maintenance and repair against any tract or contiguous tract owned by one person or corporation is less than two dollars, then the county auditor shall levy such a minimum amount. . . ." This latter portion of RCW 85.05.270,supra, quite clearly indicates that the "estimate of the cost of maintenance and repair" prepared and submitted by the drainage commissioners is to include a designation of the amount levied on each parcel of land as presently owned.

            You are therefore advised that in our opinion, it is the responsibility of the board of commissioners of a drainage district to designate the amount of the assessment to be levied on each parcel of land within the district according to present ownership.

            Question 2.  Your second question, in effect, then becomes an inquiry as to whether the board of drainage district commissioners must compute assessments on the basis of the "benefits" as originally determined by the superior court jury pursuant to RCW 85.06.120,supra.

            In all public corporations or benefit districts such as drainage districts, assessments for maintenance are determined according to special benefits received by various parcels of land within the district from facilities operated by the district.  See, 48 Am.Jur., Special Assessments, § 21, 580 (1943), supra; and 17A Am.Jur., Drains and Sewers, § 64 et seq., 486 (1957)supra.

            As previously noted, RCW 85.05.270, supra, states that maintenance assessments "shall be levied against the land in the district in proportion to the maximum benefits assessed."  This section is based in part on § 24, chapter 115, Laws of 1895, a portion of the original drainage district law of 1895.

             [[Orig. Op. Page 4]]

            Section 9 of the same chapter, as amended, and the sections immediately following (beginning with what is now codified as RCW 85.06.090) provide the procedure which, if successfully completed, empowers a drainage district to construct a system of drains.  RCW 85.06.160 provides that the cost of such construction is to be borne by the landowners of the district on the basis of the special benefits derived by the lands from the drainage system.  RCW 85.06.120 requires that a superior court jury be impaneled for the purpose, among others, of making

            ". . . a separate assessment of damages which shall result to any person . . . by reason of the appropriation and use of such land . . . for . . . improvements . . ."

            and finding

            ". . . amaximum amount of benefits per acre to be derived by each of the landowners. . . ."

            from the drainage district facilities.  SeeState ex rel. Matson v. Sup'r Court, 42 Wash. 491, 499, 85 Pac. 264 (1906).

            It is our opinion that so much of RCW 85.05.270, supra, as requires that maintenance assessments be levied against the land in the district "in proportion to the maximum benefits received . . ." has reference to the "maximum amount of benefits" as originally determined by the superior court jury pursuant to RCW 85.06.120,supra, unless a new determination has in the meantime been made.1/   This conclusion is reinforced by the  [[Orig. Op. Page 5]] judicial construction given to the language of RCW 85.05.120, a statute almost identical to RCW 85.06.120,supra.  InState ex rel. Conner v. Superior Court, 81 Wash. 480, 484, 143 Pac. 112 (1914), our court held that the jury determination of benefits required therein relates to:

            ". . . 'maximum amounts of benefits per acre to be derived by each of the landowners from the construction of said improvement,' which determinationbecame the basis for the assessment tax to be levied from time to time in that proportion against the several tracts of land within the district to pay the cost of the maintenance of the dikes of the district as well as the cost of their original construction. . . ."  (Emphasis supplied)

            You are therefore advised that unless a redetermination of benefits has been accomplished pursuant to RCW 85.06.130, supra,2/ or an alternative statutory means of providing funds for drainage facility maintenance has been adopted,3/ maintenance assessments designated by the drainage district commissioners shall be computed on the basis of the determination of benefits to each parcel of land as determined by the superior court jury pursuant to RCW 85.06.120, supra.

             [[Orig. Op. Page 6]]

            Question 3.  Finally you request our advice as to action by the board of drainage district commissioners when a parcel of land in one ownership found originally to be benefited uniformly is now divided into several ownerships.  You ask whether the commissioners should apportion the maintenance assessments against the several ownerships on the basis of the ratio that the area of each present individual ownership bears to the total acreage of the original parcel.

            Assuming that the original superior court determination of special benefits per acre under RCW 85.06.120, supra, continues as an accurate reflection of the benefits derived from the drainage district system despite changes in size of ownership and land use, and that no alternative means of acquiring maintenance funds has been adopted, we are of the opinion that the district board of commissioners in submitting maintenance assessments "in proportion to the maximum benefits assessed" required by RCW 85.05.270, supra, must apportion the individual assessments according to the size the various portions of land which make up an original parcel bear one to the other.  Accordingly, we answer your final question in the affirmative, as thus qualified.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CHARLES B. ROE, JR.
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/It should be noted that chapter 115, Laws of 1895, as amended by chapter 86, Laws of 1901 and chapter 133, Laws of 1917, contains a section providing for a procedure for redetermination of special benefits under specified conditions.  Now codified as RCW 85.06.130, this section authorizes a drainage district board of directors, if it appears that the original determination of benefits made by the court no longer reflects the benefits received by the lands in (as well as out of) the district, to institute an "equalization" proceeding.  This proceeding when completed produces anew determination of benefits on which maintenance assessments are to be based.  However, in the case ofMalim v. Benthien, 114 Wash. 533, 196 Pac. 7 (1921), this section was, in effect, held unconstitutional when a similarly worded statute relating to diking districts, RCW 85.05.130, was found to conflict with two sections of the state constitution.

2/See footnote 1, supra.  See also, RCW 85.07.130.

3/While your request states that you do not wish us to consider chapter 131, Laws of 1961 (now codified as chapter 85.32 RCW) the stated reason for enactment thereof should be noted.  RCW 85.32.010 provides in part:

            "The maintenance of drainage districts is essential to the economy of the state.  The influx of population and changes in land use since many such districts were formed, has made obsolete and unjust the method used under existing law to provide funds for the operation of such districts and for the maintenance and expansion of its drainage systems. . . .  To furnish remedy for such situations where they are found to exist the state declares that it has an interest therein and this chapter is passed."  (Emphasis supplied)

            The succeeding sections of chapter 85.32 RCW, supra, provide an alternative procedure for acquiring maintenance revenues which may assist in handling problems now faced by drainage districts.

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