AUTHORITY OF COUNTY COMMISSIONERS TO EXCLUDE LAND

COUNTIES ‑- DISTRICTS ‑- JOINT PARK AND RECREATION DISTRICT ‑- AUTHORITY OF COUNTY COMMISSIONERS TO EXCLUDE LAND

(1) Where the residents of two adjoining counties petition for the creation of a joint park and recreation district under RCW 36.69.420, the county commissioners of one of those counties may only exclude from the proposed district all land located within that county on the basis of a reasonable factual determination that no parcel of land in the county will benefit from its inclusion within the proposed district.

(2) The only procedural step which a board of county commissioners must take in making a determination to exclude certain land from a proposed joint park and recreation district is that of the conduct of a public hearing in accordance with RCW 36.69.440(2).

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                                                               September 2, 1982

Honorable H. N. Woolson
Columbia County Prosecuting Attorney
P. O. Box 7
Dayton, Washington 99328                                                                                                               Cite as:  AGLO 1982 No. 23

Dear Sir:

            By recent letter you requested our opinion on two questions which we paraphrase as follows:

            (1) Where the residents of two adjoining counties petition for the creation of a joint park and recreation district under RCW 36.69.420, may the county commissioners of one of those counties exclude from the proposed district all land located within that county?

            (2) If question (1) is answered in the affirmative, what procedures must be followed by the county commissioners in making a determination that the land in their county should be entirely excluded from the proposed joint park and recreation district?

             [[Orig. Op. Page 2]]

            We answer your questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            Question (1):

            RCW 36.69.420 permits the residents of two or more counties to initiate the formation of a joint park and recreation district.  See also,  RCW 36.69.430 and the reference therein to RCW 36.69.020, the effect of which is to require that a petition to form such a joint park and recreation district be signed by 15 percent of the registered voters residing within the proposed district.

            If that condition is met, RCW 36.69.440(1) then requires the county commissioners (or other legislative authority) of each county to hold a public hearing at which, according to RCW 36.69.440(2),

            ". . . the legislative authority for each authority for each county shall fix the boundaries for that portion of the proposed park and recreation district that lies within the county as provided in RCW 36.69.050. . . ."

            In turn, RCW 36.69.050 provides, in pertinent part, as follows:

            ". . .

            "The board of county commissioners shall eliminate from the boundaries of the proposed district land which they find will not be benefited by inclusion therein."

            We do not, however, read this latter provision as authorizing the county commissioners to determine the general merits of forming a particular joint park and recreation district.  By its terms, the statute only authorizes the county commissioners to exclude those parcels of land which would not, in their judgment, be benefited by inclusion therein.  For example, a parcel of property might be excluded if its residents have no reasonable transportation access to the rest of the proposed district‑-or for some such other, similar, reason.  Then, once the county commissioners have established the boundaries of the proposed district, the ultimate question of whether to form the district is to be submitted to the voters under RCW 36.69.050(6).  The law thus seems clearly to  [[Orig. Op. Page 3]] contemplate that the voters, and not the county commissioners, are to decide whether the district will be formed.

            Conceivably, however, it might be possible on the basis of a given set of facts for the county commissioners of one of the affected counties to reasonably determine that no parcel of land in that county will benefit from its inclusion in the proposed district.  Therefore because of that factual possibility and affirmative answer to your question is not necessarily foreclosed.  But at the same time we must also advise you that it is difficult for us to imagine such a situation given the broad meaning of the word "benefit."1/

             Question (2):

            In response to your second question, the only procedural step which a board of county commissioners must take in making a determination to exclude certain land is that of the conduct of a public hearing in accordance with RCW 36.69.440(2),supra. Consistant with out answer to your first question, however, we would suggest that, at any such hearing, the county commissioners should be advised to consider whether individual parcels of property would be benefited by inclusion in the district.  Otherwise, a decision to exclude all property within the county as "non-benefited" could well be overturned as arbitrary and capricious.  Short v. Clallam County, 22 Wn.App. 825, 593 P.2d 821 (1979).  A decision is "arbitrary and capricious" if it is willful and unreasoning and in disregard of the facts and circumstances.  See,e.g., Skagit County v. Dep't of Ecology, 93 Wn.2d 742, 613 P.2d 115 (1980).