AGLO 1977 No. 49 - Nov 9 1977
COUNTIES ‑- BOUNDARY REVIEW BOARDS ‑- DATE OF ESTABLISHMENT OR CREATION
For the purposes of RCW 36.93.140, a county boundary review board in other than a class AA or class A county is to be deemed to have been created as of the date of the resolution of the board of county commissioners establishing the boundary review board even though some or all of the members of the board are not appointed by the Governor until a later date.
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November 9, 1977
Honorable Wistar Burgess, Chairman
Franklin Co. Boundary Review Board
1016 North Fourth
Pasco, Washington 99301 Cite as: AGLO 1977 No. 49
By recent letter you have requested our opinion on a question which we paraphrase as follows:
For the purposes of RCW 36.93.140, is a county boundary review board in other than a class AA or class A county to be deemed to have been created as of the date of the resolution of the board of county commissioners establishing the boundary review board even though some or all of the members of the board are not appointed by the Governor until a later date?
We answer the foregoing question in the affirmative for the reasons set forth in our analysis.
[[Orig. Op. Page 2]]
Chapter 36.93 RCW provides for the establishment of county boundary review boards on a mandatory basis in each class AA and class A county, and on an optional basis in all other counties. RCW 36.93.030. There are, in turn, two methods by which such boards may be created in those "other" counties. As set forth in RCW 36.93.030(2) they are as follows:
". . .
"(2) A boundary review board may be created and established in any other class county in the following manner:
"(a) The board of county commissioners may, by majority vote, adopt a resolution establishing a boundary review board; or
"(b) A petition seeking establishment of a boundary review board signed by qualified electors residing in the county equal in number to at least five percent of the votes cast in the county at the last county general election may be be filed with the county auditor."
The basic function of such boards, as set forth in RCW 36.93.090, is to review and pass upon the following described actions within their respective counties:
". . .
"(1) The creation, dissolution, incorporation, disincorporation, consolidation, or change in the boundary of any city, town, or special purpose district; or
"(2) The assumption by any city or town of all or part of the assets, facilities, or indebtedness of a special purpose district which lies partially within such city or town; or
"(3) The establishment of or change in the boundaries of a mutual water and sewer system or separate sewer system by a water district pursuant to RCW 57.08.065; or
[[Orig. Op. Page 3]]
"(4) The extension of permanent water or sewer service outside of its existing corporate boundaries by a city, town, or special purpose district."
RCW 36.93.140 provides, however, that:
"Actions described in RCW 36.93.090 which are pending July 1, 1967, or actions in counties other than class AA or class A which are pendingon the date of the creation of a boundary review board therein, shall not be affected by the provisions of this chapter. Actions shall be deemed pending on and after the filing of sufficient petitions initiating the same with the appropriate public officer, or the performance of an official act initiating the same." (Emphasis supplied)
The members of a boundary review board, once established, are to be appointed by the Governor in accordance with RCW 36.93.050 which reads, in pertinent part, as follows:
". . . After a board has been established in a county other than class AA by resolution, by operation of law or by approval of the electors after an election initiated by petition, the governor shall appoint a board within forty-five days for each such county consisting of five members as provided for in this section."
Your question is whether a boundary review board established pursuant to the "resolution" method provided for in RCW 36.93.030(2)(a), supra, is to be deemed to have been "created," within the meaning of RCW 36.93.140, supra, as of the date of adoption of the county commissioners' resolution ‑ rather than the later date upon which the Governor actually appoints the first members of the board. In posing the question you have informed us that in this instance the Franklin County commissioner's resolution (establishing the Franklin County Boundary Review Board) was adopted on April 28, 1977 ‑ with the Governor's appointments then being ultimately made on July 22, 1977. The issue, thus, is whether that board was created on the former or the latter date.
[[Orig. Op. Page 4]]
The answer, in our opinion, is to be found in the express language of RCW 36.93.040 which, of course, follows RCW 36.93.030, supra, and precedes RCW 36.93.050, supra, and reads as follows:
"For the purposes of this chapter, counties other than class AA and class Ashall be deemed to have established boundary review boards on and after the date a proposition for establishing the same has been approved at an election as provided for in RCW 36.93.030, or on and after the date of adoption of a resolution of the board of county commissioners establishing the same as provided for in RCW 36.93.030." (Emphasis supplied)
In our judgment, the legislature used the words "establish" and "create" interchangeably and synonymously. A boundary review board, under RCW 36.93.030(2), supra, may be "created and established," inter alia, by the adoption of a resolution by the board of commissioners of other than a class AA or class A county. Conversely, the Governor's role is not that of creating or establishing a boundary review board but, instead, is simply the appointment of persons to serve as members of such a board. Therefore, it readily follows that ". . . the date of creation . . ." which is referred to in RCW 36.93.140, supra, means nothing more nor less than the date of establishment which, in turn, is fixed by RCW 36.93.040 as being either the date of the election or the date of the county commissioners' resolution, as the case may be. And in terms of your specific question this thus means that the Franklin County Boundary Review Board was created on April 28, 1977, when the county commissioners of Franklin County, by formal resolution, established the board in accordance with RCW 36.93.030(2)(a), supra. Therefore, the only "actions," as defined in RCW 36.93.090, supra, over which this particular boundary review board lacks jurisdiction by reason of RCW 36.93.140 are those which were already "pending" prior to that date.1/
[[Orig. Op. Page 5]]
We trust that the foregoing will be of some assistance to you.
Very turly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Note also, once again, the final sentence of RCW 36.93.140 which says that:
"Actions shall be deemed pending on and after the filing of sufficient petitions initiating the same with the appropriate public officer, or the performance of an official act initiating the same."