AGO 1984 No. 8 - Mar 1 1984
CITIES AND TOWNS ‑- CONSOLIDATION ‑- SEPA ‑- JURISDICTION OF BOUNDARY REVIEW BOARD OVER INTERCOUNTY MUNICIPAL ANNEXATION ‑- APPLICABILITY OF STATE ENVIRONMENTAL POLICY ACT
(1) A county boundary review board has jurisdiction over a proposal to consolidate a city located within the county with other cities in an adjacent county; however, the only issue which should be deemed to be before the board is whether that city should be included in the proposed new municipality.
(2) The provisions of chapter 43.21C RCW, the State Environmental Policy Act (SEPA), are applicable to any review undertaken of such a consolidation proposal by the boundary review board.
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March 1, 1984
Honorable C. J. Rabideau
P.O. Box 1160
Pasco, WA. 99301
Cite as: AGO 1984 No. 8
By letter previously acknowledged you made note of a pending proposal to consolidate the Cities of Pasco, Richland and Kennewick into a single city in accordance with either chapter 35A.05 RCW or chapter 35.10 RCW, both of which permit the consolidation of contiguous cities situated in different counties. See, RCW 35A.05.010 and RCW 126.96.36.199/ You then requested our opinion on the following related questions:
"(1) Whether RCW 36.93.090 authorizes the Franklin County [[Orig. Op. Page 2]] Boundary Review Board to take jurisdiction over a proposed consolidation of the cities of Pasco, Kennewick and Richland?
"(2) If the Franklin County Boundary Review Board may properly take jurisdiction over such proposed consolidation, and Board review is initiated by one of the means listed in RCW 36.93.100, whether the Boundary Review Board in considering the factors stated in RCW 36.93.170 should apply those factors to areas outside the geographical boundaries of Franklin County?
"(3) Assuming a consolidation petition is initiated before the Franklin County Boundary Review Board under either RCW 35.10 [chapter 35.10 RCW] or RCW 35A.05 [chapter 35A.05 RCW], what action of a person, persons, or body, is the 'proposed action' as that term is identified in RCW 36.93.090?
"(4) Whether the provisions of RCW 43.21C [chapter 43.21C RCW], the State Environmental Policy Act, would apply to any such review undertaken by the Franklin County Boundary Review Board?"
We answer the foregoing questions in the manner set forth in our analysis.
Questions (1) through (3):
Your first three questions, as above stated,2/ generally involve the functions and responsibilities (jurisdiction, if you will) of the Franklin County Boundary Review Board with respect to the proposed consolidation. Of the three existing cities involved, only one of them (Pasco) is situated within Franklin County. The other two cities (Richland and Kennewick) are located in Benton County.
Chapter 36.93 RCW provides for the establishment of boundary review boards in Class AA and Class A counties and authorizes the establishment of such boards in other counties. From what you have told us, however, we thus begin with the understanding that [[Orig. Op. Page 3]] Franklin County has established a boundary review board while Benton County has not. Conversely, if both counties had established such boards, there would be no question but that the entire consolidation issue would be under the jurisdiction of one or the other of those two boards. For clearly, chapter 36.93 RCW encompasses‑-among other local governmental actions involving municipal boundaries‑-the consolidation of preexisting cities. Accord, RCW 36.93.090 which reads, in full, as follows:
"Whenever any of the following described actions are proposedin a county in which a board has been established, the initiators of the action shall file within one hundred eighty days a notice of intention with the board, which may review any such proposed actions pertaining to:
"(1) The creation, dissolution, incorporation, disincorporation,consolidation, or change in the boundary of any city, town, or special purpose district, except that a board may not review the dissolution or disincorporation of a special purpose district which was dissolved or disincorporated pursuant to the provisions of chapter 36.96 RCW; 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 chapter 57.40 RCW, as now or hereafter amended; or
"(4) The establishment of or change in the boundries of a mutual sewer and water system or separate water system by a sewer district pursuant to RCW 56.20.015 or chapter 56.36 RCW, as now or hereafter amended; or
"(5) The extension of permanent water or sewer service outside of its existing corporate boundaries by a city, town, or special purpose district." (Emphasis supplied)
In this instance, however, because there is no boundary review board in Benton County the only such board which could be involved would be the Franklin County Boundary Review Board. It is, in [[Orig. Op. Page 4]] turn, the extent of that involvement which is the main thrust of your first three questions.3/
By definition, of course, a consolidation involves two or more municipalities‑-in this case, cities. Quaere: Do all of those cities have to be located in the same county in order for that county's boundary review board (if one exists) to have jurisdiction under RCW 36.93.090,supra? We find nothing in that statute which says that such must be the case.
On the other hand, quite clearly, the Franklin County Boundary Review Board (in this instance) would have no jurisdiction if none of the cities involved were situated in that county. Moreover, as we read through chapter 36.93 RCW, we readily discern a legislative purpose, and approach, which contemplates that each county boundary review board will be focussing, basically, only on those matters occurring within its own particular county. See, in particular, RCW 36.93.170 which delineates the factors to be considered by a county boundary review board in approving, modifying or disapproving4/ those proposed actions (enumerated in RCW 36.93.090,supra) over which the board has jurisdiction. That statute reads, in material part, as follows:
"In reaching a decision on a proposal or an alternative, the board shall consider the factors affecting such proposal, which shall include, but not be limited to the following:
"(1) Population and territory; population density; land area and land uses; comprehensive use plans and zoning; per capita assessed valuation; topography, natural boundaries and drainage basins, proximity to other populated areas; the existence of prime agricultural soils and agricultural uses; the likelihood of significant growth in the area and in adjacent incorporated and unincorporated areas during the next ten years; location and most desirable future location of community facilities;
"(2) Municipal services; need for municipal services; effect of ordinances, governmental codes, [[Orig. Op. Page 5]] regulations and resolutions on existing uses; present cost and adequacy of governmental services and controls in area; prospects of governmental services from other sources; probable future needs for such services and controls; probable effect of proposal or alternative on cost and adequacy of services and controls in area and adjacent area; the effect on the finances, debt structure, and contractual obligations and rights of all affected governmental units; and
"(3) The effect of the proposal or alternative on adjacent areas, on mutual economic and social interests, and on the local governmental structure of the county.
". . ."
Based upon the foregoing analysis of chapter 36.93 RCW, our answer to your first question is that the Franklin County Boundary Review Board does, indeed, have jurisdiction over the proposed consolidation of the Tri-Cities because Pasco, which is situated in Franklin County, is one of the cities involved. Therefore, under RCW 36.93.090, supra, the initiators of such action would be required to file, within 180 days of their initiation of the consolidation process, a notice of intention with that boundary review board covering the proposal.
In response to your second question, however, the only issue which should be deemed to be before the board as a consequence of that filing would be that of whether or not the City of Pasco should be included within the proposed new municipality.5/ And that, it would seem to us, means that the critical factors which are to be considered by the board in acting on the proposal are, basically, the factors listed in RCW 36.93.170, supra, as they relate to conditions or circumstances in Franklin County.
Finally, we have by the foregoing also answered your third question,supra. The "proposed action," within the meaning of RCW 36.93.090, supra, is the initiation of the statutory process involving the inclusion of Pasco within the proposed new city. But [[Orig. Op. Page 6]] for that action, the Franklin County Boundary Review Board would have no jurisdiction over the matter.
Your remaining question, as above stated, asks:
"Whether the provisions of RCW 43.21C [chapter 43.21C RCW], the State Environmental Policy Act, would apply to any such review undertaken by the Franklin County Boundary Review Board?"
In responding to this question let us begin by noting the final paragraph of RCW 36.93.170 (omitted in the above quotation of the statute) which was added by § 2, chapter 220, Laws of 1982, and reads:
"The provisions of chapter 43.21C RCW, State Environmental Policy, shall not apply to incorporation proceedings covered by chapter 35.02 [RCW], Incorporation Proceedings, or [chapter] 35.03 RCW, Incorporation of First Class Cities, or [chapter] 35A.03 RCW, Incorporation as a Noncharter Code City, or 35A.04 RCW, Incorporation of Intercounty Area as a Noncharter Code City."
In addition, the same legislation also added a new section (RCW 43.21C.220) to SEPA,6/ providing:
"The incorporation of a city or town is exempted from compliance with this chapter."
We view both of these legislative exemptions as being limited to incorporations under the chapters delineated in the previously quoted portion of RCW 36.93.170;i.e., chapters 35.02, 35.03, 35A.03 and 35A.04 RCW. Neither annexations nor consolidations under either chapter 35.10 RCW or chapter 35A.05 RCW are, however, similarly exempted from SEPA by that or any other legislation.
Our State Supreme Court has not yet considered the question of whether SEPA applies to a consolidation of cities. The Court has, however, twice considered the related question of whether SEPA [[Orig. Op. Page 7]] applies to annexations.7/
First, inCarpenter v. Island County, 89 Wn.2d 881, 577 P.2d 575 (1978), the Court concluded that the annexation of territory to a sewer district did not, by itself, constitute a major action significantly affecting the quality of the environment within the meaning of RCW 43.21C.030. The Court reasoned that an annexation, per se, would not change the environment.
Subsequently, however, inBellevue v. King County Boundary Review Board, 90 Wn.2d 856, 586 P.2d 470 (1978) the Court nevertheless held SEPA to be applicable to a review, by a boundary review board, of annexation actions by two competing cities. In that case two cities in King County proposed to annex the site of a planned shopping center, and the appeal raised the question of whether the King County Boundary Review Board was required to comply with SEPA. The Court noted that RCW 43.21C.060 makes SEPA a supplementary "overlay" to other statutory schemes. The Court then concluded as follows (90 Wn.2d at 865):
". . . Thus, an environmental assessment in addition to consideration of factors set out in RCW 36.93.170-36.93.180 is made mandatory upon the board by the enactment of SEPA." (Emphasis theirs)
From this we conclude, absent later statutory exemptions, that any matter being considered by a boundary review board must be preceded by procedural compliance with SEPA.8/ And, as above noted, the only such exceptions which the legislature has thus far seen fit to enact involve incorporation‑-and not either annexation or consolidation. We therefore answer your fourth question in the affirmative.
[[Orig. Op. Page 8]]
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
PHILIP H. AUSTIN
Senior Deputy Attorney General
CHARLES W. LEAN
Assistant Attorney General
*** FOOTNOTES ***
1/Since the submission of your request, the legislature has enacted, and the Governor has signed, HB 1435, now chapter 8, Laws of 1984. Under this enactment the consolidation effort will apparently now proceed under chapter 35A.05 RCW. That has no bearing, however, on our answers to your questions.
2/In stating your questions for the purposes of this opinion you will note that we have inverted the third and fourth questions set forth in your letter for organizational convenience.
3/Again, in the reorganized order above set forth.
4/Accord, RCW 36.93.150.
5/Note also, in that regard, the procedure set forth in RCW 36.93.100 for activating the review process by a county boundary review board. You have, in framing your second question, asked us to assume that one or more of those means of obtaining review of the proposal have been utilized.
6/I.e., the State Environmental Policy Act, codified in chapter 43.21C RCW.
7/In fact, one method of consolidating municipal corporations under chapter 35.10 RCW is for one to annex the other.
8/Accord, Spokane County Fire Protection Dist. No. 8 v. Spokane County Boundary Review Board, 27 Wn.App. 491, 618 P.2d 1326 (1980); see also,Barrie v. Kitsap County Boundary Review Board, 97 Wn.2d 232, 643 P.2d 433 (1982) and, most recently, Richland v. Franklin County Boundary Review Board, 100 Wn.2d 864, ___P.2d___ (91984) [(1984)].