Authority Of Mosquito Control Districts To Assess State Owned Property

DISTRICTS—ASSESSMENTS—PROPERTY—Authority Of Mosquito Control Districts To Assess State Owned Property

Mosquito control districts lack the authority to levy assessments against property owned by the state.

January 9, 2018

Dear Prosecutor Nagle:

            By letter previously acknowledged, you have requested our opinion on the following question:

May mosquito control districts levy assessments against state owned property within their respective districts pursuant to RCW 17.28.255?

BRIEF ANSWER

            No. Mosquito control districts do not have the statutory authority to levy an assessment against state owned property because state owned property is not expressly identified in RCW 17.28.255.

ANALYSIS

            Mosquito control districts are special purpose local government bodies created to eliminate mosquitoes and mosquito breeding areas. RCW 17.28.160-.185. The districts may be funded through a variety of sources, including an annual property tax, non-tax special assessments against property within the district, and by issuing general obligation bonds. See RCW 17.28.100 (authorizing general property tax levy), .252 (authorizing general property tax excess levy), .255 (authorizing special assessment), .260 (authorizing general obligation bonds). You have asked whether the authority granted to mosquito control districts under RCW 17.28.255 permits a district to assess state owned property within their districts.

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            We previously addressed whether property owned by a city could be subject to a mosquito control district special assessment under RCW 17.28.255. AGO 2003 No. 9. We determined city property could be subject to such assessments because: (1) the assessment is a special assessment rather than an ad valorem tax; and (2) the legislature had not expressly excluded city owned property from such assessments. AGO 2003 No. 9. Enclosed is a copy of this opinion for your reference.

            In a footnote to our 2003 opinion, we recognized our analysis may be different for state owned property. The footnote indicates:

            As [AGO 1972 No. 16] points out, there is a different rule for state-owned property than for property owned by local governments. The courts have stated that state property is not subject to special assessment, unless the Legislature expressly makes it so. City of Spokane v. Sec. Sav. Soc’y, 46 Wash. 150, 89 Pac. 466 (1907) and Rabel v. City of Seattle, 44 Wash. 482, 87 Pac. 520 (1906). Accord AGO 1959‑60 No. 161.

AGO 2003 No. 9, at 3 n.2. You have asked the follow-up question anticipated in this footnote.

            The first step in answering your question is to determine whether RCW 17.28.255 authorizes a non-tax special assessment or a general ad valorem tax. It is important to distinguish between these two funding sources because publicly owned property, including state property, is constitutionally and statutorily exempt from ad valorem taxes. Const. art. VII, § 1; RCW 84.36.010(1).[1] We have previously concluded RCW 17.28.255 authorizes special assessments—not general taxes—because the amount that may be assessed under that statute is imposed in proportion to the benefit received by the property, rather than based on “the value of the property” in question. AGO 2003 No. 9; see also AGO 1994 No. 24. We see no reason to depart from our previous conclusion.

            The next step is to determine under what circumstances state owned property can be subject to special assessments. As recognized in footnote two to our 2003 opinion, the Washington Supreme Court addressed this question early in the twentieth century. In Rabel v. City of Seattle, 44 Wash. 482, 483, 87 P. 520 (1906), the Court determined state owned property could not be subject to a special assessment “unless clearly and expressly made so by constitution or statute.” In contrast, other publicly owned property may be subject to a special assessment absent an express exclusion of public property as long as the statutory authority for the assessment is broad enough to include land that might be publicly owned. In re Extending Howard Avenue North, 44 Wash. 62, 67, 86 P. 1117 (1906).

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            Based on these early cases, the rule for subjecting state owned property to a special assessment is different than the rule for other publicly owned property. For state owned property, there must be a constitutional or statutory provision explicitly including state property and the property must be specially benefitted by the improvements. In re Appeal of State, 60 Wn.2d 380, 381, 374 P.2d 171 (1962); AGO 1972 No. 16; AGO 59-60 No. 161. In contrast, other publicly owned property is subject to assessment as long as it is not expressly excluded by statute and the property is specially benefitted by the improvement. AGO 2003 No. 9.

      The legislature authorized certain special assessments against state owned property in RCW 79.44.010. This statute permits assessing districts to levy assessments against state owned property. RCW 79.44.010. The term “assessing district” is defined as:

            (1)        Incorporated cities and towns;

            (2)        Diking districts;

            (3)        Drainage districts;

            (4)        Port districts;

            (5)        Irrigation districts;

            (6)        Water-sewer districts;

            (7)        Counties; and

            (8)        Any municipal corporation or public agency having power to levy local improvement or other assessments, rates, or charges which by statute are expressly made applicable to lands of the state.

RCW 79.44.003. Similarly, an “assessment” for purposes of RCW 79.44.010 is “any assessment, rate or charge levied . . . by any assessment district as defined in RCW 79.44.003, and which assessments, rates or charges by statute are expressly made applicable to lands of the state.” RCW 79.44.004.

            Mosquito control districts are municipal corporations or, at minimum, public agencies. See AGO 1984 No. 10, at 3-4 (discussing the nature of municipal corporations and quasi-municipal corporations). But they are not specifically identified in RCW 79.44.003(1)-(7). Thus, in order for mosquito control districts to fit within the definition of an assessing district under RCW 79.44.003(8), the statutes authorizing mosquito control districts to assess land must expressly provide such power is “applicable to lands of the state.” RCW 79.44.003(8). RCW 17.28.255 does not contain that express legislative authorization. Thus, under the plain

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language of the statute, mosquito control districts are not “assessing districts” and do not have the power to “levy assessments against state owned property” under RCW 79.44.010.

            We therefore conclude the laws governing mosquito control districts do not expressly authorize the assessment of state owned property. In the absence of that express authority, we must answer the question you presented in the negative. Mosquito control districts do not have the authority to levy assessments against state owned property.

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

ANNIKA SCHAROSCH
Assistant Attorney General

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