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AGO 1989 No. 18 - October 06, 1989
AGO Opinion Header Image
Ken Eikenberry | 1981-1992 | Attorney General of Washington

DIKING, DRAINAGE, AND FLOOD CONTROL ‑- DISTRICTS ‑- COUNTIES ‑- SPECIAL ASSESSMENTS

1.         Chapter 85.38 RCW authorizes "special assessments" which may be imposed only on property specially benefitted in accordance with article 7, section 9, of the Washington Constitution as interpreted in case law; this chapter does not authorize the imposition of "rates and charges" based on some standard other than special benefit. 

2.         Assessments made under chapter 85.38 [RCW] must be based on the special benefit conferred by a public work or activity on particular property, and may not lawfully be based on the extent of use of public services or other criteria. 

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

                                                                 October 6, 1989

Honorable Seth Dawson
Prosecuting Attorney
Snohomish County
Mission Building
3000 Rockefeller Avenue
Everett, Washington 98201

Cite as:  AGO 1989 No. 18                                                                                                                

 Dear Mr. Dawson:

             By letter previously acknowledged, you requested our opinion on the following questions:

             1.         Does RCW [chapter] 85.38 [RCW] authorize "special assessments", which can be imposed only on property specially benefitted in accordance with the special benefit requirement of article 7, section 9 of the Washington Constitution, or does it authorize user rates/charges, which may be imposed in the absence of special benefit?

             2.         May the assessments authorized by RCW [chapter] 85.38 [RCW] be based upon a combination of use theory and benefit theory (i.e., a portion of the assessment based on use and a portion of the assessment based on special benefit)?

              [[Orig. Op. Page 2]]

             3.         Are the procedures of RCW [chapter] 85.38 [RCW] for adopting district budgets and determining final assessments constitutional in that they afford adequate due process to owners of real property subject to the special assessment?

             We answer the first and second questions in the manner set forth in our analysis.  We decline to answer the third question for the reason set forth below.

                                                                      ANALYSIS

             Before turning to your first question, it would be helpful to provide some background on special assessments and rates and charges and on the differences between them.  Special assessments to pay for local public improvements benefitting specific lands are of ancient lineage.  See Bellevue Assocs. v. Bellevue, 108 Wn.2d 671, 674, 741 P.2d 993 (1987);Heavens v. King Cy. Rural Library Dist., 66 Wn.2d 558, 563, 404 P.2d 453 (1965).  All special assessments have a common element:  they support the construction of local improvements that are appurtenant to specific property and bring a benefit to that property substantially more intense than is conferred on other property.  Bellevue Assocs. v. Bellevue, 108 Wn.2d at 674-75.

             The court inWeyerhaeuser Timber Co. v. Banker, 186 Wash. 332, 340, 58 P.2d 285 (1936), described the purpose of special districts and special assessments (in that case for flood control) as follows:

                         The primary purpose in organizing a flood control district of the kind here is to reclaim, or save, and to benefit particular property.  Such districts are analogous to diking, drainage, levee and irrigation districts.  The purpose of the improvements contemplated by such projects is either to escape the ravages, or else to secure the benefits, of water and its effects.  The powers conferred upon such bodies corporate are not primarily those of government or regulation, or even of taxation, though such powers are conferred to a limited degree as necessarily incident to the main power conferred.  The primary and principal power thus granted is that of local improvement of the real estate in the district for the benefit of its owners.

 (Citations omitted.  Emphasis added.)

             The special benefit to the land must be actual, physical, and material.  Bellevue Assocs. v. Bellevue, 108 Wn.2d at 675.  The measure of the special benefits is "the difference between  [[Orig. Op. Page 3]] the fair market value of the property immediately after the special benefits have attached and its fair market value before they have attached."  Id. (quotingHeavens v. King Cy. Rural Library Dist., 66 Wn.2d at 564); see also In re Schmitz, 44 Wn.2d 429, 434, 268 P.2d 436 (1954).

             The special benefit requirement is constitutionally based, as pointed out by the court inIn re Shilsole Ave., 85 Wash. 522, 537, 148 P. 781 (1915):

             It is the basic principle and the very life of the doctrine of special assessments that there can be no special assessment to pay for a thing which has conferred no special benefit upon the property assessed.  To assess property for a thing which did not benefit it would be pro tanto the taking of private property for a public use without compensation, hence unconstitutional.  Though the right to levy special assessments for local improvements is referable solely to the sovereign power of taxation,our state constitution, article 7, § 9, expressly limits its exercise to assessments of property benefited.

 (Emphasis added.)1/

             "In the last analysis," observed the court in Heavens v. King Cy. Rural Library Dist., 66 Wn.2d at 564, "a valid special assessment for a local improvement is merely compensation paid by the property owner for the improved value of his land.  If there is no benefit, there can be no assessment."

             Special assessments, however, are not the exclusive method of financing local improvements.  Improvements necessary to health and safety may be authorized under the police power and paid for other than by local assessment, such as by imposed service or user charges.  In such cases, article 7, section 9 is not implicated.  See, e.g.,Hillis Homes, Inc. v. Public Util. Dist. 1, 105 Wn.2d 288, 299-301, 714 P.2d 1163 (1986);Teter v. Clark Cy., 104 Wn.2d 227, 230-32, 704 P.2d 1171 (1985);Morse v. Wise, 37 Wn.2d 806, 811-13, 226 P.2d 214 (1951).

              [[Orig. Op. Page 4]]

             For example, inMorse v. Wise, supra, the City of Chelan had previously constructed a sewer system, largely financed by special assessments.  Subsequently, additions and improvements to the system were required, including extensions into previously unserved areas.  Acting pursuant to statute, the City combined its water works utility and sewer systems, constructed and installed additions and improvements, and proceeded to collect service charges for water and sewer service to pay for the improvements.  Owners who had been assessed for the original improvements objected to paying any part of the cost connected with the construction and installation of additions to the original sewer system, which would serve only new users and would be of no benefit to them nor of any special benefit to their properties.

             The court recognized that the owners' objection would have been valid if the City had acted pursuant to the local improvement statutes.  The City, however, had acted under a different set of statutes:  namely, chapter 193, Laws of 1941.  According to the court, the whole concept underlying this latter set of statutes was different from the local improvement district statutes.  Under these latter statutes, the City was acting pursuant to the police power granted to it to provide sewer service to protect the health of its inhabitants and to defray the expense by making service charges.  37 Wn.2d at 810-11.

            According to the court:

             The statutes pursuant to which the improvements provided for in ordinance No. 210 were made, authorize a different method of furnishing revenue to finance their construction and maintenance than is prescribed by local improvement statutes providing for assessments according to special benefits.  Prior to the making of these improvements, the city had no occasion to make a service charge to appellants, as the maintenance costs were paid out of general funds; but under the plan authorized by the act of 1941 and provided by the ordinance, the service charges must be made to defray both construction costs and operation and maintenance.  The act does not exclude sewer systems constructed pursuant to local improvement statutes, but it contemplates the raising of revenue by fixing rates and charges for the furnishing of service to all of those served by the system of sewerage as a whole.

 Id. at 811.  (Emphasis added.)

             A similar result was reached in Teter v. Clark Cy., supra.  InTeter, the City of Vancouver and Clark County jointly acted to control flooding and pollution problems in Burnt Bridge Creek and its drainage basin.  The County, pursuant to RCW [chapter] 36.89 [RCW], formed a storm and surface water department for management of the entire  [[Orig. Op. Page 5]] drainage basin.  The City passed an ordinance, pursuant to RCW [chapter] 35.67 [RCW], which created a storm and surface water utility.  The County and City then entered into an interlocal agreement authorizing joint operation, management, and financing of the newly formed water department or utility.  The County was designated the principal operator of the joint water utility.  104 Wn.2d at 228-29.

             The County subsequently adopted another ordinance, pursuant to RCW 36.89.080, which set the charges to be paid by property owners whose property lies within the drainage basin.2/

             Property owners challenged the inclusion of their properties among those to be charged for the operation of the department.  Because their properties did not border on Burnt Bridge Creek, appellants argued that they did not specially benefit from the flood control services of the new water department.  According to the court, however, an examination of the statutes under which the County and City acted showed that the charges imposed were not special assessments.  104 Wn.2d at 230.

             The City acted pursuant to RCW [chapter] 35.67 [RCW], which authorizes a city to form and operate a "system of sewerage" and to charge "rates and charges" for the use of such systems.  The court noted that this statute's predecessor, which was worded identically, was construed by the court in Morse v. Wise,supra, in which the court held that the predecessor statute authorized the city to act under its police power and that the concept of special benefits was not relevant in that case.  104 Wn.2d at 230-31.

             With respect to the County, the Teter court noted that RCW 36.89.030 authorizes counties to "establish, acquire, develop, [and] construct . . . storm water control facilities".  The statute authorizes several different methods of funding:  (1) issuance of general obligation bonds, RCW 36.89.040; (2) creation of utility local improvement districts and charging of special assessments, RCW 36.89.110; (3) issuance of revenue bonds, RCW 36.89.100; and (4) adoption of a resolution "fixing rates and charges for the furnishing of service to those served or receiving benefits . . . or contributing to an increase of surface water runoff", RCW 36.89.080.  See 104 Wn.2d at 232.

              [[Orig. Op. Page 6]]

             The County did not proceed under the special assessment section, RCW 36.89.110.  No utility local improvement district was formed.  Neither did the County proceed under the first or third methods relating to the issuance of bonds.  Rather, the County chose to proceed under the rates and charges method specified in RCW 36.89.080.  That section of the statute authorized the County to charge not only for services supplied to property owners, but also based on the properties' contribution to increased surface water runoff.3/

             The court held that just as RCW [chapter] 35.67 [RCW] grants cities the police power to operate management systems for storm sewers, RCW [chapter] 36.89 [RCW] similarly gives counties such police power.  104 Wn.2d at 232.

             The court found legislative intent to give the counties such police power in the statute.  Significantly, said the court, RCW [chapter] 36.89 [RCW] states as among its purposes:

             The storm water control facilities within such county provide protection from storm water damage for life and property throughout the county, generally require planning and development over the entire drainage basins, and affect the prosperity, interests and welfare of all the residents of such county.

 104 Wn.2d at 232 (quoting RCW 36.89.020).  Furthermore, said the court, the resolutions passed by the County pursuant to RCW [chapter] 36.89 [RCW] evidenced an intended exercise of the police power.  104 Wn.2d at 233.  The cleanup by the County of Burnt Bridge Creek, along with measures to prevent flooding in the entire drainage basin were, therefore, well within the broad scope of the County's police power as health, safety, or welfare measures.  Id.

            From the foregoing discussion of special assessments and rates and charges, we can draw the following conclusions:  (1) The case law clearly indicates that the Legislature may authorize districts to imposeeither special assessments or rates and charges.  (2) If the Legislature authorizes special assessments, the state constitution (article 7, section 9) requires that the assessments be based on the benefit accruing to specific properties.  (3) If the Legislature instead authorizes the imposition of rates and charges as part of the general police power, then this constitutional restriction does not apply.  (4) Whether the Legislature has authorized special assessments or rates and charges is a question of statutory construction.

             [[Orig. Op. Page 7]]

             With this background discussion of special assessments and rates and charges in mind, we turn next to an examination of RCW [chapter] 85.38 [RCW], which is the statute about which you inquire.  RCW [chapter] 85.38 [RCW] was enacted in 1985.  Laws of 1985, ch. 396.  The purpose of RCW [chapter] 85.38 [RCW] is to provide uniform and simplified procedures for the creation, elections, and operations of various special districts that provide diking, drainage, and flood control facilities and services.  RCW 85.38.005.  Prior to the enactment of RCW [chapter] 85.38 [RCW], the procedures relating to diking, drainage, sewer improvement, and flood control districts were governed by a variety of different statutes, mostly codified in Titles 85 and 86 RCW.4/

              Under RCW [chapter] 85.38 [RCW], special diking, drainage, sewer improvement, and flood control districts can be created either by petition of the owners of property within the proposed special district or by resolution of the county in which the proposed special district is to be located.  RCW 85.38.020.  The governing body of the special district is elected by those who own property within the district.  RCW 85.38.010.  The authority of the special districts is set forth in RCW 85.38.180.  Under that statute, special districts may:

                         (1) Engage in flood control activities, and investigate, plan, construct, acquire, repair, maintain, and operate improvements, works, projects, and facilities necessary to prevent inundation or flooding from rivers, streams, tidal waters or other waters.  Such facilities include dikes, levees, dams, banks, revetments, channels, canals, and other works, appliances, machinery, and equipment.

                         (2) Engage in drainage control, storm water control, and surface water control activities, and investigate, plan, construct, acquire, repair, maintain, and operate improvements, works, projects, and facilities necessary to control and treat storm water, surface water, and  [[Orig. Op. Page 8]] flood water.  Such facilities include drains, ditches, canals, nonsanitary sewers, pumps, and other works, appliances, machinery, and equipment.

                         (3) Take actions necessary to protect life and property from inundation or flow of flood waters, storm waters, or surface waters.

                        . . . .

             Although RCW [chapter] 85.38 [RCW] establishes the exclusive procedure for the creation and governance of the enumerated special purpose districts, the procedure in RCW [chapter] 85.38 [RCW] for funding is mandatory only for special districts created after July 28, 1985 and for special districts, regardless of date of creation, that annex territory under RCW 85.38.200.  RCW 85.38.140, [85.38].200.  Special districts created before July 28, 1985 that have not annexed territory under RCW 85.38.200 have the option of adopting the financing system provided for in RCW [chapter] 85.38 [RCW].  RCW 85.38.140.

             One of the financing systems provided for in RCW [chapter] 85.38 [RCW] is a system of special assessments.5/

             RCW 85.38.160 outlines the procedure for establishing special assessments:

                         (1) The county within which each special district is located shall establish a system or systems of assessment for the special district as provided in this section.  A differing system of assessment shall be established for different classes of facilities that a special district provides or will provide, including a separate system of assessment for diking and drainage facilities if both classes of facilities are provided. . . .A system of assessment shall include assessment zones, the acreage included in each assessment zone, a dollar value of benefit or use per acre, and various classes or types of improvements together with a dollar value of benefit or use for an improvement included in each of the classes or types of improvements.  The county shall establish which improvements shall be subject to special assessments and shall establish one or more types or classes of such improvements.

 (Emphasis added.)

             The criteria for imposing special assessments are set forth in more detail in RCW 85.38.150:

              [[Orig. Op. Page 9]]

                         (1)Special district special assessments shall be imposed only on real property within the district that uses or will use the special district's facilities or receives or will receive special benefits from the special district's operations and facilities. . . .

                         (2)Special assessments imposed upon real property, other than improvements,shall be a function of the dollar value of benefit or use per acre and the assessment zone in which the real property is located.  Special assessments imposed upon an improvement shall be a function of the dollar value of benefit or use assigned to the type or class of improvements and the assessment zone in which the improvement is located.

                         (3)Assessment zones shall be established in which each zone reflects a different relative ratio of benefit or use that the real property within such a zone receives, or will receive, from the special district's operations and facilities.  That real property receiving the greatest benefits, or which uses the special district's facilities to the greatest extent, shall be placed into class No. 1 and assigned a value of one hundred percent; that real property receiving the next greatest benefits, or which uses the special district's facilities to the next greatest extent, shall be placed into class No. 2 and assigned a lower percentage value; and so on, extending to the class of least benefits or use.  That real property receiving no benefits or use shall be designated "nonbenefit."  If all real property in the special district is found to have the same relative ratio of benefit or use, a single assessment zone may be established.

                         (4) Any one or more of the following criteria shall be used in measuring the manifest degrees or ratios of benefit or use:  (a) Proximity to the special district's facilities; (b) height above or below dikes and levees; (c) easier accessibility; (d) facility of drainage; (e) minimization of flood or inundation damage; (f) actual flood protection; (g) use of the special district's facilities; and (h) any other criteria established by the county under RCW 85.38.160 that measure manifest degrees of benefit or use from the special district's facilities and operations.

                         (5)Special assessments may be imposed to pay for the construction, repair, and maintenance of special district facilities and for special district operations.  Administrative and operational costs of  [[Orig. Op. Page 10]] the special district shall be proportionally included in these special assessments.

 (Emphasis added.)

             With this background discussion of special assessments and rates and charges and an overview of RCW [chapter] 85.38 [RCW] in mind, we turn now to your first question.

 Question 1

             Does RCW [chapter] 85.38 [RCW] authorize "special assessments", which can be imposed only on property specially benefitted in accordance with the special benefit requirement of article 7, section 9 of the Washington Constitution, or does it authorize user rates/charges, which may be imposed in the absence of special benefit?

             As we have seen, the Legislature may authorize local districts to impose either special assessments or rates and charges.  Special assessments must be related to special benefits; rates and charges imposed pursuant to a grant of police power need not be.  To determine which system of revenue raising the Legislature had in mind for RCW [chapter] 85.38 [RCW], we need to examine three factors:  (1) the words the Legislature used to characterize the revenue system; (2) the nature of the statutory scheme as a whole; and (3) the basis on which the assessment or charge is imposed.

             A.  Characterization of the Revenue System.  It is a standard rule of construction that if the Legislature uses a term well known to the common law, the Legislature is presumed to have intended it to mean what was understood at common law.  State v. Dixon, 78 Wn.2d 796, 804, 479 P.2d 931 (1971); Fransen v. State Bd. of Natural Resources, 66 Wn.2d 672, 674-75, 404 P.2d 432 (1965).

             The assessments provided for in RCW [chapter] 85.38 [RCW] are specifically and repeatedly referred to as "special assessments".  See, e.g., RCW 85.38.060, [85.38].140, [85.38].150, [85.38].160, [85.38].170.  This is the same term that is used in article 7, section 9 and in the case law.  The term has a clear and definite meaning in the constitution and in the case law.  As discussed earlier, "special assessments" are assessments imposed on property to support the construction of local improvements that are appurtenant to specific property.  To be valid, they must bring a benefit to the property assessed substantially more intense than is conferred on other property.  Bellevue Assocs. v. Bellevue, 108 Wn.2d at 674-75.

             Nowhere in RCW [chapter] 85.38 [RCW], on the other hand, are the assessments ever referred to as "rates and charges".  This contrasts with the situation in both Teter v. Clark Cy., supra, and Morse v. Wise, supra, where the applicable statutes specifically authorized the  [[Orig. Op. Page 11]] local districts to impose "rates and charges".  The term "rates and charges" also has a definite meaning.  It refers to a system of financing a public improvement by a local government, acting pursuant to a grant of police power, by imposing charges unrelated to special benefit.  See, e.g.,Morse v. Wise, 37 Wn.2d at 810-11.

             The Legislature is presumed to intend that a term be construed according to its commonly understood meaning.  "Special assessments" has a commonly understood meaning.  When the Legislature used the term "special assessments" in RCW [chapter] 85.38 [RCW], we must presume that it meant only to authorize "special assessments" that comply with the special benefit requirement of article 7, section 9 of the Washington Constitution.

             B.  Nature of the Statutory Scheme.  The second factor to consider is the nature of the statutory scheme under which the assessments are imposed.  InMorse v. Wise, supra, and Teter v. Clark Cy., supra, the local governments sought to finance sewer systems by imposing service charges unrelated to special benefits.  Such charges would have been illegal if they had been imposed pursuant to local improvement statutes.  But in those two cases, the court found that the local governments acted under a different set of statutes enacted pursuant to their police power to provide sewer service to protect the health of their inhabitants and to defray the expense by making service charges.  Therefore, the constitutional requirements of article 7, section 9 did not apply.

             Here, the presumption that the Legislature intended to authorize special assessments rather than rates an charges could possibly be overcome if the statutory scheme as a whole clearly indicated a legislative delegation of police power to local districts to provide sewer service to protect the health of their inhabitants and to defray the expense by imposing service charges.  However, we do not find such a legislative delegation of police power.  Instead, the statute is much more like a traditional local improvement scheme.

             The "local improvement" nature of the statute is manifested in a variety of ways.  The purpose of the statute is to clarify and standardize the procedures for the creation, elections, and operations of a variety of "special districts".  RCW 85.38.005.  The purpose of the special districts is primarily related to the construction, maintenance, and operation of "improvements, works, projects, and facilities".  RCW 85.38.180;see also RCW 85.38.020, [85.38].030, [85.38].040, [85.38].150, [85.38].160.  Real property is the basis for voting rights and assessment obligations.  See [RCW] 85.38.010, [85.38].150, [85.38].160.  All these attributes are consistent with a local improvement district plan.  See generally 14 E. McQuillin,Municipal Corporations § 38.01 (3d ed. rev. 1987).

              [[Orig. Op. Page 12]]

             Admittedly, RCW [chapter] 85.38 [RCW] does have some language similar to that of police power statutes.  For example, before a special district can be created, the county in which the legislative district will be located must find "[t]hat creation of the special district will be conducive to the public health, convenience and welfare."  RCW 85.38.050.  Also, one of the enumerated powers of a special district is to "[t]ake actions necessary to protect life and property from inundation or flow of flood waters, storm waters, or surface waters".  RCW 85.38.180(3).  On balance, however, we do not think these limited references to public health and welfare are sufficient to authorize the imposition of rates and charges where no specific authority to impose them has been given.

            Chapter 160, Laws of 1935, which related to flood control districts, contained similar, isolated references to public health and welfare.  Nevertheless, the court in Weyerhaeuser Timber Co. v. Banker, 186 Wash. at 340-42, found that the primary purpose of the act was to benefit the lands within the district.  That purpose was disclosed on the face of the act itself.  It repeatedly spoke of the "lands" to be included in the district and of the lands "to be benefitted."  Id.  As with the flood control district statute at issue in Weyerhaeuser, the primary purpose of RCW [chapter] 85.38 [RCW] appears to be to benefit the lands within the district rather than to provide for the public health and welfare.

             C.  Basis on Which the Assessment or Charge is Imposed.  The Legislature is presumed to have used the term "special assessments" to authorize the imposition of assessments based on special benefit.  Another way this presumption could possibly be overcome would be if RCW [chapter] 85.38 [RCW], as the statute did in Teter v. Clark Cy.,supra, expressly authorized the local districts to charge based on contribution to the problem addressed by the local improvement.  RCW [Chapter] 85.38 [RCW] does not contain such authority.

             RCW 85.38.150(1) provides that the "special assessments shall be imposed only on real property within the district that uses or will use the special district's facilities orreceives or will receive special benefits from the special district's operations and facilities."  (Emphasis added.)  The term "use" is somewhat ambiguous.  Is property that "uses" district facilities property that contributes to the need for the facilities?  We think not.  We believe the Legislature meant the terms "use" and "benefit" to be roughly synonymous.  That is, property that benefits from the district's flood control, drainage control, pollution control, or other facilities "uses" those facilities.  This conclusion is supported by RCW 85.38.150(2), which provides that the special assessments "shall be a function of the dollar value of benefit or use per acre".  Property that contributes to a problem would not necessarily obtain a dollar value from such contribution. Inclusion of the word "use" in RCW 85.38.150(1)  [[Orig. Op. Page 13]] does not, therefore, authorize assessments based on contribution to the particular problem addressed by the local improvements.

             In summary, the Legislature used the term "special assessments" rather than "rates and charges" in RCW [chapter] 85.38 [RCW].  In our opinion, neither the statutory scheme of RCW [chapter] 85.38 [RCW] as a whole nor the basis on which the assessments are imposed overcomes the presumption that by using a term with a clear, definite, and well-understood meaning, the Legislature meant to authorize that which is commonly understood by the term.  Specifically, we believe the Legislature meant to authorize special assessments, which can be imposed only on property specially benefitted in accordance with the special benefit requirement of the state constitution, rather than to authorize rates and charges, which may be imposed in the absence of special benefit.

 Question 2

             May the assessments authorized by RCW [chapter] 85.38 [RCW] be based upon a combination of use theory and benefit theory (i.e., a portion of the assessment based on use and a portion of the assessment based on special benefit)?

             Our answer to this question is largely contained in our answer to question 1.  The assessments authorized by RCW [chapter] 85.38 [RCW] are "special benefits", which can be imposed only on property specially benefitted in accordance with the special benefit requirement of article 7, section 9.  They must, therefore, be based entirely on special benefit.  RCW [chapter] 85.38 [RCW] authorizes special assessments based on both "use" and "benefit".  In our opinion, however, "use" is synonymous with "benefit".  RCW [chapter] 85.38 [RCW] does not authorize, nor as a special assessment statute could it permissibly authorize, assessments based on contribution to the problem addressed by the local improvement rather than on the special benefit conferred.6/

             Question 3

             Are the procedures of RCW [chapter] 85.38 [RCW] for adopting district budgets and determining final assessments constitutional in that they afford adequate due process  [[Orig. Op. Page 14]] to owners of real property subject to the special assessments?

             It is the longstanding policy of this office to decline to address the constitutionality of a statute.  The reason for this policy is that this office is often called upon to defend the constitutionality of such statutes.  Accordingly, we decline to answer your third question.

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

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

MARK S. GREEN
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

 1/Const. art. 7, § 9 provides, in part:

             The legislature may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of property benefited.

 2/RCW 36.89.080 provides, in part: 

            Any [county] may provide by resolution for revenues by fixing rates and charges for the furnishing of service to those served or receiving benefits . . . from any storm water control facility or contributing to an increase of surface water runoff. 

3/This method of assessment, based upon both special benefit and contribution to the problem, is the type sought to be imposed by the Snohomish County drainage district that is the specific focus of your question.

 4/Although these separate statutes survive the enactment of RCW [chapter] 85.38 [RCW] and still apply to some extent, much of RCW [chapter] 85.38 [RCW] is incorporated by reference into the prior statutes.  For example, RCW 85.08.015 provides: 

            Diking, drainage, or sewerage improvement districts shall possess the authority and shall be created, district voting rights shall be determined, and district elections shall be held as provided in chapter 85.38 RCW.

A similar provision with respect to flood control districts is contained in RCW 86.09.020. 

5/RCW [chapter] 85.38 [RCW] also authorizes special districts to issue special assessment bonds or notes.  RCW 85.38.230. 

6/The proposed benefit/use assessment system outlined in your letter and attachments defines the word "use" in RCW 85.38.150 entirely differently, so that it is synonymous with "contribution" rather than "benefit".  As we understand it, the Snohomish County drainage district to which you refer proposes to impose assessments based in part on which properties contribute to the drainage, flooding, or pollution problem.  In our opinion, this system of fixing charges is not permissible under RCW [chapter] 85.38 [RCW].

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