COUNTIES ‑- WEED CONTROL BOARD ‑- SPECIAL ASSESSMENTS ‑- CITIES AND TOWNS ‑- APPLICABILITY OF SPECIAL ASSESSMENT FOR COUNTY WEED PROGRAM WITHIN INCORPORATED AREAS

COUNTIES ‑- WEED CONTROL BOARD ‑- SPECIAL ASSESSMENTS ‑- CITIES AND TOWNS ‑- APPLICABILITY OF SPECIAL ASSESSMENT FOR COUNTY WEED PROGRAM WITHIN INCORPORATED AREAS

RCW 17.10.240(1) authorizes the county legislative authority to levy a special assessment against land for the purpose of operating the county's weed program.  This assessment may be levied on land located in incorporated areas within the county.

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                                                                October 17, 1990

The Honorable Paul Klasen
Prosecuting Attorney
Grant County
Post Office Box 39
Ephrata, Washington 98823

                                                                                                                 Cite as:  AGO 1990 No. 11

Dear Mr. Klasen:

            By letter previously acknowledged you have asked our opinion on a question we paragraph as follows:

            Can a county legislative authority levy an assessment for operating the county weed control program pursuant to RCW 17.10.240(1) on land located within the boundaries of a city or town located within the county?

The answer to your question is yes, subject to the requirements of RCW 17.10.240(1).

                                                                     ANALYSIS

            The Legislature has provided for control of noxious weeds in both unincorporated and incorporated parts of a county.  With regard to the unincorporated parts of the county, RCW 17.04.010 empowers the county legislative authority to create a weed district.  The weed district "shall include only cultivated or farming lands."  Id.  In AGO 51-53 No. 241, we concluded that this limitation prohibited the county legislative authority from including a city or town within the boundaries of a weed district.

             [[Orig. Op. Page 2]]

            Although cities and towns are not part of the weed district, they are responsible for controlling noxious weeds within their boundaries.  RCW 17.04.160 provides:

            Any city or town contiguous to or surrounded by a weed district formed under this chapter shall provide for the destruction, prevention and extermination of all weeds specified in the petition which are within the boundaries of such city or town, in the same manner and to the same extent as is provided for in such surrounding or contiguous weed district; and it shall be the duty of those in charge of school grounds, playgrounds, cemeteries, parks, or any lands of a public or quasi public nature when such lands shall be contiguous to, or within any weed district, to see that all weeds specified in the petition for the creation of such district are destroyed, prevented and exterminated in accordance with the rules and requirements of such district.

The Legislature has also assigned noxious weed responsibilities to the county as a whole.  RCW 17.10.020 provides:

            (1) In each county of the state there is hereby created a noxious weed control board, which shall bear the name of the county within which it is located.  The jurisdictional boundaries of each board shall be coextensive with the boundaries of the county within which it is located.

            (2) Each noxious weed control board shall be inactive until activated pursuant to the provisions of RCW 17.10.040.

(Emphasis added.)

            The boundaries of the county noxious weed control board are coextensive with the boundaries of the county.  The board consists of five voting members.  The members are appointed by the county legislative authority.  Each member of the board represents a section of the county.  The five sections must be approximately the same size and do not overlap.  RCW 17.10.050(1).

            RCW 17.10.060(1) provides that the county noxious weed board may employ a weed coordinator whose duties shall include  [[Orig. Op. Page 3]] inspecting land to determine the presence of noxious weeds.  The board may also obtain equipment and hire additional personnel to administer the county's noxious weed control program.  The board is empowered to adopt rules necessary for effective county weed control and eradication.  RCW 17.10.060(2).  The county noxious weed control board is also responsible for adopting, from the state noxious weed list, a list of noxious weeds to be controlled in the county.  RCW 17.10.090.

            The Legislature has provided two ways to fund the activities of the county noxious weed control board.  First, the county legislative authority may appropriate money from the county general fund.  RCW 17.10.240(2).  Second, the county legislative authority may levy an assessment for this purpose.  The levy is authorized by RCW 17.10.240(1) which in pertinent part provides:

            The county legislative authority may, in lieu of a tax, levy an assessment against the land for this purpose.  Prior to the levying of an assessment the county noxious weed control board shall hold a public hearing at which it shall gather information to serve as a basis for classification andshall then classify the lands into suitable classifications, including but not limited to dry lands, range lands, irrigated lands, nonuse lands, forest lands, or federal lands.  The board shall develop and forward to the county legislative authority, as a proposed level of assessment for each class, such an amount as shall seem just.  The assessment rate shall be either uniform per acre in its respective class or a flat rate per parcel rate plus a uniform rate per acre:  PROVIDED,That if no special benefits should be found to accrue to a class of land, a zero assessment may be levied.  The legislative authority, upon receipt of the proposed levels of assessment from the board, after a hearing, shall accept, modify, or refer back to the board for its reconsideration all or any portion of the proposed levels of assessment.  The findings by the county legislative authority of such special benefits, when so declared by resolution and spread upon the minutes of said authority shall be conclusive as to whether or not the same constitutes a special benefit to the lands within the section.  The amount of such assessment shall constitute a lien against the property. . . .

(Emphasis added.)

             [[Orig. Op. Page 4]]

            In our opinion RCW 17.10.240(1) empowers the county legislative authority to assess land located in cities and towns within the county.  We reach this conclusion for three reasons.

            First, we note the legislative command that chapter 17.10 RCW be liberally construed.  RCW 17.10.905 provides:

            The purpose of [chapter 17.10 RCW] is to limit economic loss due to the presence and spread of noxious weeds on or near agricultural land.

                        The intent of the legislature is that this chapter be liberally construed, and that the jurisdiction, powers, and duties granted to the county noxious weed control boards by this chapter are limited only by specific provisions of this chapter or other state and federal law.

(Emphasis added.)  Thus, the powers and jurisdiction of the boards are to be liberally construed and are deemed to be limited only by other laws which are specifically limiting.

            Second, the taxation and assessment authority of the county legislative authority is not limited to unincorporated areas.  Under RCW 17.10.240 the county may choose to fund noxious weed control through either its general fund or through land assessments.  If funding is to take place through the latter mechanism, the county noxious weed control board is required to classify lands into various classification such as dry lands, range lands, nonuse lands, forest lands or federal lands, and to recommend to the county legislative authority the level of assessment for each class.  RCW 17.10.240(1), then, are based on a uniform land classification system, rather than whether land happens to be located within a city, town or unincorporated area.

            Our conclusion is buttressed by the fact that the county noxious weed board may also be funded by an appropriation from the county general fund, which is now called the county current expense fund.  AGO 63-64 No. 76, at 3.  The county current expense fund includes all taxes levied for the purpose of current expenses.  These taxes are collected from both incorporated and unincorporated parts of the county.  Thus, if the county noxious weed board is funded from the county current expense fund, it is funded from both incorporated and unincorporated parts of the county.  It is logical that the Legislature continued this pattern by enacting RCW 17.10.240(1) and giving the county legislative authority the power to assess land within the county.

             [[Orig. Op. Page 5]]

            Third, the county noxious weed board operates throughout the county.  Its jurisdictional boundaries are coextensive with the boundaries of the county.  RCW 17.10.020.  The voting members of the board are appointed from five equal sections of the county.  RCW 17.10.050(1).  The board is empowered to adopt rules necessary for an effective county weed control or eradication program.  RCW 17.10.060(2).  The board establishes a county noxious weed list of weeds it finds necessary to be controlled in the county.  RCW 17.10.090.

            All of these provisions lead to the conclusion that cities and towns located in the county are within the jurisdiction of the county noxious weed board.  This is in contrast to weed districts established pursuant to RCW 17.04.010 which excludes cities and towns.  Since cities and towns are within the jurisdiction of the county noxious weed board, we believe the Legislature intended to empower the county legislative authority to assess lands within incorporated areas to help pay for the program.

            It is fundamental that a county can exercise only those powers expressly granted to it by the Legislature, or those necessarily implied from granted powers.  Pacific First Fed. Sav. & Loan Ass'n v. Pierce County, 27 Wn.2d 347, 353, 178 P.2d 351 (1947).  With respect to the power of a county to assess land located within a city or town for noxious weed control, it is necessarily implied from the jurisdictional boundaries of the board and county and from the specific assessment classification system set forth by statute.  This system is based on type of land and does not limit the county to assessments in the unincorporated area.  Also, such county-wide jurisdiction over assessments is consistent with the express intent of the Legislature in RCW 17.10.905 to "limit economic loss due to the presence and spread of noxious weeds on or near agricultural land."

            Of course, any assessment of land within the incorporated (and unincorporated) parts of a county must meet the requirements of RCW 17.10.240.  With regard to assessing land in incorporated areas of a county, there are two requirements we would bring to your attention.

            First, RCW 17.10.240(1) provides that "the assessment rate shall be either uniform per acre in its respective class or a flat rate per parcel rate plus a uniform rate per acre . . . ."  Assessment by the county legislature authority must meet this standard.

             [[Orig. Op. Page 6]]

            Second, RCW 17.10.240 provides that "control of weeds is a special benefit to lands within any . . . section."  RCW 17.10.240(1) further states:

            PROVIDED, That if no special benefits should be found to accrue to a class of land, a zero assessment may be levied.  The legislative authority, upon receipt of the proposed levels of assessment from the board, after a hearing, shall accept, modify, or refer back to the board for its reconsideration all or any portion of the proposed levels of assessment.  The findings by the county legislative authority of such special benefits, when so declared by resolution and spread upon the minutes of said authority shall be conclusive as to whether or not the same constitutes a special benefit to the lands within the section. . . .

Thus, the county legislative authority may levy a zero assessment if there is not special benefit to land located within incorporated areas.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SHIRLEY WALL BATTAN
Assistant Attorney General
(206) 753-6215