TAXATION ‑- PROPERTY ‑- ELECTIONS ‑- EXTENT OF VOTER APPROVAL REQUIRED TO EXCEED 106% LIMITATION

TAXATION ‑- PROPERTY ‑- ELECTIONS ‑- EXTENT OF VOTER APPROVAL REQUIRED TO EXCEED 106% LIMITATION

The extent of voter approval required in order for a taxing district to exceed the statutory limitation on levy rates established by RCW 84.55.010 through 84.55.040 is a simple majority in accordance with RCW 84.55.050.

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                                                               November 21, 1978

Honorable Patrick D. Sutherland
Prosecuting Attorney
Thurston County
Courthouse
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1978 No. 29

Dear Sir:

            By recent letter you have requested our opinion on a question which we paraphrase as follows:

            Is the extent of voter approval required in order for a taxing district to exceed the statutory limitation on levy rates established by RCW 84.55.010 through 84.55.040:

            (a) A simple majority in accordance with RCW 84.55.050; or

            (b) A "super majority" of 60% or more in accordance with Article VII, § 2(a) of the state constitution as incorporated by reference in RCW 84.52.052?

            For the reasons stated below we believe that only a simple majority is required under the circumstances contemplated by your question.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Your question relates to an aspect of the statutory limitation upon property taxes fixed by chapter 84.55 RCW, commonly referred to as the 106% law.  The first section of that law, RCW 84.55.010, provides (with certain exceptions not here relevant) as follows:

            "Except as provided in RCW 84.55.020 through 84.55.050, the levy in 1973 and years subsequent thereto for a taxing district other than the state or a school district in any year shall be set so that the regular property taxes payable in the following year shall not exceed one hundred six percent of the amount of regular property taxes lawfully levied for such district in the highest of the three most recent years in which such taxes were levied for such district plus an additional dollar amount calculated by multiplying the increase in assessed value in that district resulting from new construction and improvements to property by the regular property tax levy rate of that district for the preceding year. . . ."

            Next, RCW 84.55.020 through 84.55.040 allow for adjustments to this basic levy limitation (a) when a new taxing district has been created through consolidation, (b) when a district has been expanded through annexation or (c) when and if an increase in the otherwise applicable statutory rate limitation has been granted by the legislature.  And finally, the last section of the law, RCW 84.55.050, provides as follows:

            "Subject to any otherwise applicable statutory dollar rate limitations, regular property taxes may be levied by or for a taxing district in an amountexceeding the limitations provided for in RCW 84.55.010 through 84.55.040 if such levy is authorized by a proposition approved by a majority of the voters of the taxing district voting on the proposition at a  [[Orig. Op. Page 3]] general election held within the district or at a special election within the taxing district called by the district for the purpose of submitting such proposition to the voters. . . ."  (Emphasis supplied)

            Your inquiry involves the interrelationship between this last quoted section of chapter 84.55 RCW and so much of RCW 84.52.052 as provides that:

            ". . . Any county, school district, metropolitan park district, park and recreation district in class AA counties and counties of the second, eighth and ninth class, sewer district, water district, public hospital district, rural county library district, intercounty rural library district, fire protection district, cemetery district, city or town may levy taxes at a rate inexcess of the rate specified in RCW 84.52.050 through 84.52.056 and RCW 84.52.043, orRCW 84.55.010 through 84.55.050, when authorized so to do by the electors of such county, school district, metropolitan park district, park and recreation district in class AA counties and counties of the second, eighth and ninth class, sewer district, water district, public hospital district, rural county library district, intercounty rural library district, fire protection district, cemetery district, city or town in the manner set forth in Article VII, section 2(a) of the Constitution of this state, as amended by Amendment 59 and as thereafter amended, at a special election to be held in the year in which the levy is made.

            ". . ."  (Emphasis supplied)

            Additionally to be noted is Article VII, § 2 (Amendment 59) of the constitution to which reference is made in RCW 84.52.052, supra.  This constitutional provision, in essence, fixes an aggregate limitation on all property taxes levied by the state and its municipalities (except port districts and public utility districts) of ". . . one percent of the true and fair value of such property in money" for any year.  This limitation, however,  [[Orig. Op. Page 4]] may also be exceeded under certain specified circumstances with the approval of the voters.  The problem, insofar as your question is concerned, is that the extent of voter approval thus required is significantly different from that which is required by RCW 84.55.050,supra.  Whereas the latter statute, as noted, only requires approval by a simple majority of the voters voting on the proposition, Article VII, § 2(a) (and, hence, RCW 84.52.052) require a 60% "super majority" for valid voter approval.  See,Thurston v. Greco, 78 Wn.2d 424, 474 P.2d 881 (1970).

            In your letter you have expressly quoted from both RCW 84.55.050,supra, and from RCW 84.52.052, supra, and have noted the substantial similarity in the critical language of both statutes.  We most certainly agree that the language is similar; it is not, however, identical‑-and therein lies the key to our answer.  RCW 84.55.050 (the first statute) refers to levies which exceed the limitations provided for inRCW 84.55.010 through RCW 84.55.040.  In contrast, RCW 84.52.052 refers to levies which exceed the rates specified inRCW 84.55.010 through RCW 84.55.050.

            The difference is critical.  If the proposed levy exceeds the 106% limit set by RCW 84.55.010 through RCW 84.55.040, but has nevertheless been approved by a simple majority of the voters pursuant to RCW 84.55.050, then that proposed levy no longer exceeds the ". . . rate specified in . . . RCW 84.55.010 through 84.55.050 . . ." which, as you will see, is the precise phraseology used in RCW 84.52.052.  In other words, through the device of an election at which a proposition to exceed the limitation fixed by RCW 84.55.010 through 84.55.040 has been approved by a simple majority, the permissible statutory ". . . rate specified in . . . RCW 84.55.010 through 84.55.050 . . ." is itself increased.

            What, then, is the function of the similarly (though not identically) worded segment of RCW 84.52.052?  We will attempt to answer that question and, at the same time, further explain our response to your immediate question with an illustration.  Assume the case of a county in which the 106% statutory limitation in RCW 84.55.010,supra, results in a levy rate (for a given year) of $1.70 per $1,000 of assessed valuation.  Assume further (as is actually the case) that the maximum levy rate under RCW 84.52.043 (representing a county's allocated share of the one per centum aggregate limitation on regular property taxes fixed by Article VII, § 2(a), supra) is $1.80 per thousand dollars of assessed valuation.  If the proposal, under RCW 84.55.050, is simply to increase the county's chapter 84.55 RCW  [[Orig. Op. Page 5]] limitation from $1.70 per thousand dollars of assessed valuation to $1.80 per thousand dollars of assessed valuation then a simple majority approval of the voters pursuant to RCW 84.55.050 will suffice.1/   But what if, instead, the proposal involves the imposition of property taxes at the rate of $1.90 per thousand dollars of assessed valuation; i.e., above the rate allowed by RCW 84.52.043?