CITIES AND TOWNS ‑- ANNEXATION ‑- PROCEEDINGS INITIATED BY RESOLUTION OF GOVERNING BODY ‑- PUBLIC HEARING BY COUNTY COMMISSIONERS NOT REQUIRED PRIOR TO ELECTION

CITIES AND TOWNS ‑- ANNEXATION ‑- PROCEEDINGS INITIATED BY RESOLUTION OF GOVERNING BODY ‑- PUBLIC HEARING BY COUNTY COMMISSIONERS NOT REQUIRED PRIOR TO ELECTION.

When an annexation proposal has been initiated by resolution of the legislative body of a city or town and is approved by the review board created pursuant to § 2, chapter 282, Laws of 1961, the board of county commissioners of the county in which such city or town is situated is not required to conduct a public hearing prior to submission of the annexation proposal to a vote of the electors.

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                                                                 January 23, 1962

Honorable Donald H. Webster
Director, Bureau of Governmental
Research and Services
266 J. Allen Smith Hall
University of Washington
Seattle 5, Washington

                                                                                                                Cite as:  AGO 61-62 No. 90

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on two questions which we paraphrase as follows:

            (1) When an annexation proposal has been initiated by resolution of the legislative body of a city or town pursuant to § 1, chapter 282, Laws of 1961, and is approved by the review board created pursuant to § 2, chapter 282, Laws of 1961, is the board of county commissioners of the county in which such city or town is situated required to conduct a public hearing prior to submission of the annexation proposal to a vote of the electors?

            (2) If question (1) is answered in the affirmative, what matters may be considered at such a hearing?

            We answer your first question in the negative, for the reasons set forth in our analysis.  Consideration of your second question is therefore unnecessary.

                                                                     ANALYSIS

            Basic statutory authority for the annexation of unincorporated areas by incorporated cities and towns is contained in § 1, chapter 128, Laws of 1945 (cf. RCW 35.13.010), providing in pertinent part as  [[Orig. Op. Page 2]] follows:

            "Any portion of a county not heretofore incorporated as a city or town lying contiguous to any city or town may become annexed to such city or town under the provisions of this act, and when so annexed shall become a part of said city or town: . . ."

            Though there were, prior to the 1961 legislative session, a total of five methods by which annexation proceedings could be initiated, only two of these methods were of general significance.  They were (1) by petition signed by a specified number of qualified voters residing in the area to be annexed (RCW 35.13.020), and (2) by petition signed by the owners of not less than seventy-five percent in value of the property proposed to be annexed (RCW 35.13.130).  The remaining three methods, as set forth in RCW 35.12.010, et seq., RCW 35.13.180, and 35.13.190, were of extremely limited applicability and were rarely employed.  Prior to 1961 there was, for all practical purposes, no way whereby an annexation proceeding could be initiated by a resolution of the legislative body of the city or town whose territorial limits were to be enlarged by the proposed annexation.

            A basic distinction between the two petition methods of initiating annexation proceedings, which were authorized under pre‑1961 law, was that the petition of a specified number of qualified voters (RCW 35.13.020) was directed to the appropriate board of county commissioners and called for an election on the annexation proposal; whereas, the petition of property owners (RCW 35.13.130) was directed to the governing body of the city or town "to which annexation is desired," and contemplated no popular election on the annexation proposal.  However in each case, a public hearing was required.

            In this respect, RCW 35.13.040, relating to petitions executed by a specified number of voters and directed to the appropriate board of county commissioners, provided as follows:

            "Upon the filing of a petition to call an annexation election, the board of county commissioners at its next meeting shall fix a date for hearing thereon to be held not less than two weeks nor more than four weeks thereafter, of which hearing the petitioners must give notice by publication for at least two weeks prior thereto in some newspaper printed and published in the city or town to which the area is proposed to be annexed.  Upon the day fixed, the board shall hear the petition, and  [[Orig. Op. Page 3]] if it complies with the requirements of law, shall grant it.  The hearing may be continued from time to time for an aggregate period not exceeding two weeks."

            RCW 35.13.140, relating to petitions executed by property owners and directed to the governing body of the city or town to which annexation was desired, provided as follows:

            "Whenever a petition for annexation is filed with the city or town council, or commission in those cities having a commission form of government, which meets the requirements herein specified, of which fact satisfactory proof may be required by the council or commission, the council or commission may entertain the same, fix a date for a public hearing thereon and cause notice of the hearing to be published in one issue of a newspaper of general circulation in the city or town.  The notice shall also be posted in three public places within the territory proposed for annexation, and shall specify the time and place of hearing and invite interested persons to appear and voice approval or disapproval of the annexation.  The expense of publication and posting of the notice shall be borne by the signers of the petition."

            Upon granting a petition, after a hearing held pursuant to RCW 35.13.040,supra, the board of county commissioners was to ". . . fix a date for the annexation election, which must be not less than thirty nor more than sixty days thereafter."  RCW 35.13.060.  The procedures to be followed with regard to the annexation election were set forth in RCW 35.13.070, 35.13.080, and 35.13.090.  Finally, assuming a favorable vote on the annexation proposal, the matter was then to be considered by the appropriate city or town council pursuant to RCW 35.13.100, the concluding sentence of which reads as follows:

            ". . . If the council deems it wise or expedient to annex the proposed area, it shall adopt an ordinance providing for the annexation."

            By way of contrast, following the hearing required by RCW 35.13.140,supra, the procedure to be followed was as set forth in RCW 35.13.150, providing as follows:

             [[Orig. Op. Page 4]]

            "Following the hearing, the council or commission shall determine by ordinance whether annexation shall be made.  They may annex all or any portion of the proposed area but may not include in the annexation any property not described in the petition.  Upon passage of the ordinance a certified copy shall be filed with the board of county commissioners of the county in which the annexed property is located."

            That the two methods of annexation above outlined were in the alternative, neither superseding the other, was made clear by RCW 35.13.120 (election method is alternative) and by RCW 35.13.170 (petition method is alternative).

            Then, in 1961, by § 1, chapter 282, Laws of 1961, a new method of initiating annexation proceedings was authorized.  This section provides as follows:

            "In addition to the method prescribed by section 7 of this amendatory act for the commencement of annexation proceedings [i.e., by petition of a specified number of qualified voters pursuant to RCW 35.13.020, supra, as amended], the legislative body of any city or town may, whenever it shall determine by resolution that the best interests and general welfare of such city or town would be served by the annexation of unincorporated territory contiguous to such city or town, file a certified copy of the resolution with the board of county commissioners of the county in which said territory is located.  The resolution of the city or town initiating such election shall describe the boundaries of the area to be annexed, as nearly as may be state the number of voters residing therein, pray for the calling of an election to be held among the qualified voters therein upon the question of annexation, and provide that said city or town will pay the cost of the annexation election.  The resolution may require that there also be submitted to the electorate of the territory sought to be annexed a proposition that all property  [[Orig. Op. Page 5]] within the area annexed shall, upon annexation, be assessed and taxed at the same rate and on the same basis as the property of such annexing city or town is assessed and taxed to pay for any then outstanding indebtedness of the city or town to which said area is annexed, contracted prior to, or existing at, the date of annexation."  (Emphasis supplied.)

            In addition, by § 2, chapter 282, Laws of 1961, a procedure was established for the review of all annexation proposals (except, apparently, the little used methods provided for in RCW 35.12.010, 35.13.180, and 35.13.190), regardless of whether initiated by the new resolution method or by either of the two pre‑existingpetition methods (except that, under § 3, chapter 282, Laws of 1961, this review procedure may be dispensed with where "the area proposed for annexation is less than ten acres and less than two hundred thousand dollars in assessed valuation").

            By § 4, chapter 282, Laws of 1961, the legislature set forth in detail the duties and functions of the review board created by § 2, supra.  In considering your first question, namely, the necessity of a hearing on annexation proposals initiated by the new resolution method, we have assumed that this newly enacted review procedure has been followed, and that the review board, in the performance of its functions and duties as set forth in § 4, has approved the proposal.

            Clearly, hearings are still required in the cases of annexation proposals initiated by the two petition methods.  RCW 35.13.140,supra, relating to petitions executed by property owners and directed to the governing body of the city or town to which annexation is desired, has been neither amended nor repealed.  RCW 35.13.040,supra, relating to petitions executed by a specified number of voters and directed to the appropriate board of county commissioners, has been amended (by § 9, chapter 282, Laws of 1961) only to add "approval by the review board" as a condition precedent to (1) the duty of the board of county commissioners to fix a date for hearing on the proposal, and (2) the power of the board of county commissioners to grant the petition.

            However, nowhere in chapter 282, Laws of 1961 (by § 1 of which the newresolution method of initiating annexation proceedings was authorized, as above noted) do we find expressly stated any requirement for a hearing on an annexation proposal initiated by the new resolution method.  Section 1, chapter 282, Laws of 1961, supra, provides for the filing of the resolution with the board of county commissioners.  Section 2 provides for the convening of a review board "within ten days after the filing of a city's or town's annexation resolution with the board of county commissioners."  Section 4, as previously  [[Orig. Op. Page 6]] noted, sets forth the functions and duties of the review board.  And finally, § 5, chapter 282, Laws of 1961, to which we now make reference for the first time in this opinion, provides as follows:

            "Upon receipt by the board of county commissioners of a determination by a majority of the review board favoring annexation of the proposed area, the board of county commissioners shall fix a date on which an annexation election shall be held, which date will be not less than thirty days nor more than sixty days thereafter."

            Obviously, while a review board is to function not only with regard to annexation proposals initiated by the new resolution method but also with regard to annexation proposals initiated by either of the two pre‑existing petition methods, the new section last quoted can only have application to annexation proposals initiated by the resolution method.  Annexation proposals initiated by petition of property owners and directed to the governing body of the city or town to which annexation is desired, require no election nor action by the board of county commissioners.  See, RCW 35.13.150,supra, which has been neither amended nor repealed.  As for annexation proceedings initiated by a specified number of voters and directed to the appropriate board of county commissioners, as previously noted (pursuant to RCW 35.13.040, as amended by § 9, chapter 282, Laws of 1961) the procedure to be followed by the board of county commissioners upon the filing of approval by the review board of such a petition is to then "fix a date for hearing thereon to be held not less than two weeks nor more than four weeks thereafter."  Only after said hearing, and upon granting the petition, is the board of county commissioners to fix a date for the annexation election; this pursuant to RCW 35.13.060, re‑enacted by § 12, chapter 282, Laws of 1961, providing as follows:

            "Upon granting the petition, the board of county commissioners shall fix a date for the annexation election, which must be not less than thirty nor more than sixty days thereafter."

            It is fundamental that in construing legislation, each and every section of a legislative enactment must, if possible, be given meaning.  Miller v. City of Pasco, 50 Wn. (2d) 229, 310 P. (2d) 863 (1957); Martin v. Dept. of Social Security, 12 Wn. (2d) 329, 121 P. (2d) 394 (1942), and cases cited therein.  Having established that § 5, chapter 282, Laws of 1961, supra, (requiring that the board of county  [[Orig. Op. Page 7]] commissioners "upon receipt . . . of a determination by a majority of the review board favoring annexation of the proposed area" to "fix a date on which an annexation election shall be held, which date will be not less than thirty nor more than sixty days thereafter") is manifestly inapplicable to annexation proposals initiated by either of the pre‑1961 petition methods, it follows that to be given effect this section must be said to be applicable to those annexation proposals which are initiated by the resolution method.

            Given the proposition that where the annexation proposal is initiated by the resolution method, the board of county commissioners, immediately upon receipt of approval of the proposal by the review board, is to fix a date on which an annexation election shall be held, it is difficult to perceive a legislative intent that in such a case the board of commissioners is also to fix a date for a public hearing on the proposal.  True, the date of the annexation election is to be "not less than thirty nor more than sixty days" after receipt by the board of county commissioners of approval of the proposal by the review board, thus establishing an interim period during which a public hearingcould, conceivably, be held.  However the fact remains that neither § 5,supra, nor any other provision contained in chapter 282, Laws of 1961, expressly requires that a hearing be held in the case of an annexation proposal initiated by the new resolution method.

            In making this statement we are not unaware of § 10, chapter 282, Laws of 1961, amending RCW 35.13.050 (and the underlying session law which RCW 35.13.050 codifies) to read as follows (with emphasis supplied to indicate amendatory language):

            "After the filingwith the board of county commissioners of a petitionor resolution to call an annexation election, pending the hearing thereon, and pending the election to be called thereunder, the board of county commissioners shall not consider any other petitionor resolution involving any portion of the territory embraced therein:  PROVIDED, That the petitionor resolution may be withdrawn or a new petitionor resolution embracing other or different boundaries substituted therefor by a majority of the signers thereof, or in the case of a resolution, by the legislative body of the city or town, and the same proceeding shall be taken as in the case of an original petition or resolution."

            It is to be noted that the phrase "pending the hearing thereon" was not added by the 1961 amendment, but rather also appeared in the  [[Orig. Op. Page 8]] statute as it previously read.  The obvious purpose of this section as it read prior to the 1961 amendment, was to bar action by the board of county commissioners on any other annexation proposal initiated by petition (the only method then available) involving any portion of the territory embraced within an annexation petition then before the board, pending completion of all of the procedural requirements governing such an annexation petition; namely "the hearing thereon" and "the election to be called thereunder."  The evident purpose of the legislature in amending this section by § 10, chapter 282, Laws of 1961, was not to indicate that a hearing is also to be held in the case of an annexation proposal initiated by resolution, but rather was merely to make it clear that the previously existing bar to consideration of other proposals involving the same territory was to apply whether the proposal was initiated by petition or by resolution.

            Finally, it seems to us, not without some significance, that during the 1959 legislative session, a bill was introduced which was also designed to authorize the initiation of annexation proceedings by resolution of the legislative body of a city or town.  This was Senate Bill No. 11, 1959 legislative session.  Section 5 of Senate Bill No. 11, a proposed amendment to RCW 35.13.040,supra, would have provided (if enacted) in pertinent part:

            "Upon the filing of a petitionor a resolution to call an annexation election, the board of county commissioners at its next meeting shall fix a date for a hearing thereon. . . ."  (Emphasis supplied.)

            By way of contrast, § 9, chapter 282, Laws of 1961, also amending RCW 35.13.040, merely provided that:

            "Upon the filing of approval by the review board of a petition to call an annexation election, the board of county commissioners at its next meeting shall fix a date for hearing thereon . . ."  (Emphasis supplied.)

            Thus, had the legislature in enacting chapter 282, Laws of 1961, intended to require a hearing on an annexation proposal initiated by resolution as well as where the proposal was initiated by petition, it could very easily have used the same language which was used in the proposed amendment to RCW 35.13.040 contained in § 5 of Senate Bill No. 11, 1959 legislative session.

            Therefore, for the reasons above stated, it is our opinion that where an annexation proposal is initiated by resolution of the legislative  [[Orig. Op. Page 9]] or governing body of a city or town, pursuant to § 1, chapter 282, Laws of 1961, supra, and is approved by a review board created pursuant to § 2, and functioning pursuant to § 4, upon the filing of said approval with the board of county commissioners a date for an annexation election is to be fixed pursuant to § 5, supra, and no hearing on the proposal is to be required.

            This answer to your first question renders consideration of your second question unnecessary.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General