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Attorney General

Bob Ferguson

AGLO 1973 No. 29 -
Attorney General Slade Gorton


An "open space" classification may be granted under chapter 84.34 RCW to a tract of land the preservation of which in its present use would conserve and enhance natural or scenic resources, even though the tract in question is less than five acres in size.

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                                                                  March 21, 1973

Honorable E. R. Whitmore, Jr.
Prosecuting Attorney
Chelan County Court House
Wenatchee, Washington 98801                                                                                                               Cite as:  AGLO 1973 No. 39

Dear Sir:

            This is written in response to your recent letter requesting our opinion on a question which we paraphrase as follows:

            May "open space" classification be granted under chapter 84.34 RCW to a tract of land the preservation of which in its present use would conserve and enhance natural or scenic resources, even though the tract in question is less than five acres in size?

            We answer this question in the affirmative.


            By its enactment of chapter 87, Laws of 1970, 1st Ex. Sess., the legislature added to Title 84 RCW (property taxes) a new chapter (chapter 84.34 RCW) which is commonly known as the "open spaces act."  The chapter's purpose, as expressed in § 1 (RCW 84.34.010), is to preserve open space land, farm and agricultural land, and timber land by providing tax relief in the form of a special valuation procedure to the owners of such land.  See, § 6 (RCW 84.34.060), which provides that:

            "In determining the true and fair value of open space land, farm and agricultural land, and timber land, which has been classified as such under the provisions of this chapter, the assessor shall consider only the use to which such property and improvements is currently applied and shall not consider potential uses of such property.  The assessor shall compute the assessed value of such property by using the same assessment ratio which he applies generally in computing the assessed value of other property:  Provided, That the assessed  [[Orig. Op. Page 2]] valuation of open space land with no current use shall be not less than that which would result if it were to be assessed for agricultural uses."

            Compare, RCW 84.40.030, which continues to govern the valuation of real property for tax purposes in all other instances and states that "All property shall be assessed fifty percent ofits true and fair value in money. . ."  (Emphasis supplied)1/ - a concept which was explained by this office in AGO 65-66 No. 65 [[to George Kinnear, Chairman Tax Commission on December 31, 1965]]as follows:

            "The 'true and fair value of property in money' [for property tax valuation purposes] is its market value or the amount of money a buyer willing, but not obligated to buy would pay for it to a seller willing, but not obligated to sell.  In arriving at a determination of such value the assessing officer can consider only those factors which can within reason be said to affect the price in negotiations between a willing purchaser and a willing seller, and he must consider all of such factors."

            The constitutional basis for this new legislation is to be found in Article VII, § 11 (Amendment 53) of the state Constitution, approved by the voters in 1968, which provides that:

            "Nothing in this Article VII as amended shall prevent the legislature from providing, subject to such conditions as it may enact, that the true and fair value in money (a) of farms, agricultural lands, standing timber and timberlands, and (b) of other open space lands which are used for recreation or for enjoyment of their scenic or natural beauty shall be based on the use to which such property is currently applied, . . ."

            Although each of these three categories of land is expressly defined in § 2 of the act (RCW 84.34.020), we need only concern ourselves here with the first ‑ "open space land" ‑ which is defined therein as follows:

             [[Orig. Op. Page 3]]

            "(1) 'Open space land' means (a) any land area so designated by an official comprehensive land use plan adopted by any city or county and zoned accordingly or (b) any land area, the preservation of which in its present use would (i)conserve and enhance natural or scenic resources, or (ii) protect streams or water supply, (iii) promote conservation of soils, wetlands, beaches or tidal marshes, or (iv) enhance the value to the public of abutting or neighboring parks, forests, wildlife preserves, nature reservations or sanctuaries or other open space, or (v) enhance recreation opportunities, or (vi) preserve historic sites, or (vii) retain in its natural state tracts of landnot less than five acres situated in an urban area and open to public use on such conditions as may be reasonably required by the legislative body granting the open space classification."  (Emphasis supplied.)

            The precise issue raised by your question is whether the phrase "not less than five acres" in subpart (vii) of this statute applies to, and thereby modifies, subpart (i), also above underscored, as well.  In our opinion, it does not.

            In our judgment, the plain and unambiguous language of this definition of "open space land" means that a tract of land is eligible to be so classified2/ under subsection (b) of RCW 84.34.020 (1), supra, whenever the preservation of this land in its present use would meetanyone of the seven alternative criteria thereinafter set forth.  Note, particularly, the legislature's consistent use of the disjunctive word "or" rather than the conjunctive word "and" throughout this statute.  From this it clearly follows, in our opinion,  [[Orig. Op. Page 4]] that the "not less than five acres" restriction with which you are concerned is applicable only in the case of an application for open space classification which is based upon subpart (vii) of the subject statute ‑ and thus has no bearing upon the eligibility for "open space" classification of a tract of land which falls within one of the six other subparts of this definition of "open space land."

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

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/But see S.J.R. No. 1, whereby the Constitution was amended last November to provide, henceforth for taxation on the basis of the full "true and fair value" of taxable property.

2/See, RCW 84.34.040, which sets forth the procedures to be followed in seeking "open space" classification of land, as well as the standards to be applied by the county or city in which the land is located in determining whether to grant such classification.