CITIES AND TOWNS ‑- ANNEXATION ‑- REVIEW BOARD ‑- POWER TO EXCLUDE OR DELETE PROPERTY FROM PROPOSED ANNEXATION

CITIES AND TOWNS ‑- ANNEXATION ‑- REVIEW BOARD ‑- POWER TO EXCLUDE OR DELETE PROPERTY FROM PROPOSED ANNEXATION.

A review board, convened under the provisions of RCW 35.13.171, has the authority to delete property from a proposed annexation to a city but only where said property proposed to be annexed is not of such a character that its annexation would be in the public interest.

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                                                               November 27, 1962

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County City Building
Seattle 4, Washington

                                                                                                              Cite as:  AGO 61-62 No. 178

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            Does a review board, convened under the provisions of RCW 35.13.171, have authority to exclude or delete property from a proposed annexation to a city?

            We answer your question in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            The primary means of initiating a proposal for annexation of unincorporated areas to a city or town are (1) by petition signed by a specified number of qualified voters residing in the area to be annexed (RCW 35.13.020); (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); and (3) by resolution adopted by the legislative body of any city or town (RCW 35.13.015).  See, AGO 6162 No. 90 [[to Donald Webster, Bureau of Governmental Research and Services on January 23, 1962]], a copy of which is herein enclosed.

            The first two of these methods of initiating an annexation proposal have been available for a number of years.  The third is relatively new, having first been authorized by chapter 282, Laws of 1961.

             [[Orig. Op. Page 2]]

            This same 1961 legislative enactment also established an additional procedural step in the processing of annexation proposals, applicable in the case of all three methods above outlined; namely, consideration of the annexation proposal by a review board.  In this regard, RCW 35.13.171 (codifying § 2, chapter 282, Laws of 1961) provides:

            "Within ten days after the filing of a city's or town's annexation resolution with the board of county commissioners, or within ten days after filing with the county commissioners a petition calling for an election on annexation, as provided in RCW 35.13.020, or within ten days after approval by the legislative body of a city or town [of] a petition of property owners calling for annexation, as provided in section 17 of this amendatory act, the mayor of the city or town concerned shall convene a review board composed of the following persons:

            "(1) The mayor of the city initiating the annexation resolution, or an alternate designated by him;

            "(2) The chairman of the board of county commissioners of the county wherein the property to be annexed is situated, or an alternate designated by him;

            "(3) The director of the state department of commerce and economic development, or an alternate designated by him.

            "(4) The chairman or chairmen of the board of school directors of any or all school districts situated in whole or in part of the area to be annexed.

            "An additional member to be designated by a majority of the members above designated, who shall be a resident of and a property owner in the area proposed to be annexed, shall be added to the original membership and the full board thereafter convened upon call of the mayor."

            The function to be performed by the review board is set forth in RCW 35.13.173 (codifying § 4, chapter 282, Laws of 1961), as follows:

             [[Orig. Op. Page 3]]

            "The review board shall by majority action, within three months,determine whether the property proposed to be annexed is of such character that such annexation would be in the public interest and for the public welfare, and in the best interest of the city, county, and other political subdivisions affected.  The governing officials of the city, county, and other political subdivisions of the state shall assist the review board insofar as their offices can, and all relevant information and records shall be furnished by such offices to the review board.  In making their determination the review board shall be guided, but not limited, by their findings with respect to the following factors:

            "(1) The immediate and prospective populations of the area to be annexed;

            "(2) The assessed valuation of the area to be annexed, and its relationship to population;

            "(3) The history of and prospects for construction of improvements in the area to be annexed;

            "(4) The needs and possibilities for geographical expansion of the city;

            "(5) The present and anticipated need for governmental services in the area proposed to be annexed, including but not limited to water supply, sewage and garbage disposal, zoning, streets and alleys, curbs, sidewalks, police and fire protection, playgrounds, parks, and other municipal services, and transportation and drainage;

            "(6) The relative capabilities of the city, county, and other political subdivisions to provide governmental services when the need arises;

            "(7) The existence of school districts and special districts within the area proposed  [[Orig. Op. Page 4]] to be annexed, and the impact of annexation upon such districts;

            "(8) The elimination of isolated unincorporated areas existing without adequate economical governmental services;

            "(9) The immediate and potential revenues that would be derived by the city as a result of annexation, and their relation to the cost of providing service to the area.

            "Whether the review board determines for or against annexation, its reasons therefor, along with its findings on the specified factors and other material considerations shall:

            "(1) In the case of a petition signed by property owners calling for an annexation without election, be filed with the legislative body of the city or town concerned;

            "(2) In the case of a petition signed by registered voters calling for an election on annexation, be filed with the board of county commissioners;

            "(3) In the case of a resolution of a city or town initiating annexation proceedings, be filed with the board of county commissioners.

            "Such findings need not include specific data on every point listed, but shall indicate that all factors were considered."  (Emphasis supplied.)

            Against this background, we understand your specific question to be whether the authority of the review board is limited to approving or disapproving the annexation proposal in its entirety, or whether, instead, the review board is authorized to exclude or delete individual tracts or parcels of property from the area proposed to be annexed.

            In the language of the statute, above emphasized, the determination to be made by the review board is

            ". . . whether the property proposed to be  [[Orig. Op. Page 5]] annexed is of such character that such annexation would be in the public interest and for the public welfare, and in the best interest of the city, county, and other political subdivisions affected. . . ."

            InMeek v. Thurston County, 160 Wash. Dec. 466, (1962) [[60 Wn. 2d 461]]a question presented was whether a review board, in functioning on an annexation proposal, was required to give public notice of its meetings and provide a hearing concerning the proposed annexation.  The contention was that such notice and hearing is required by RCW 42.32.010, which is the general public notice statute and which provides as follows:

            "No board, commission, agency or authority of the state of Washington, nor the governing board, commission, agency or authority of any political subdivision exercising legislative, regulatory or directive powers, shall adopt any ordinance, resolution, rule, regulation, order or directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which public notice has been given by notifying press, radio and television in the county and by such other means as may now or hereafter be provided by law:  Provided, That this chapter shall not apply to the state legislature, the judiciary, or to those regulatory orders of quasi judicial bodies applicable only to named parties as distinguished from orders having general effect on the public or a class or group."

            The court held that the statute was applicable; i.e., that under RCW 42.32.010,supra, a review board is required to give public notice of its meetings and hold open meetings at which interested persons, including land owners of property located within the area to be annexed, may attend and be heard.  Particularly pertinent to the instant question is that portion of the court's opinion (at pages 471-472) in which it observed as follows:

            "The defendant Thurston County argues that the absence of a public notice and open hearing requirement in the board of review's proceedings is not irregular in view of the fact that the ballot is available as a means for persons such as the plaintiff to express views regarding the annexation.   [[Orig. Op. Page 6]] We do not think the opportunity to cast a vote in the annexation election sufficiently indicates that the legislature did not intend RCW 42.32.010 to apply to the proceedings of the board of review.  If the opposite were true, then a person who owns property in the area proposed to be annexed, but who is not a 'voter resident' in the area, would be completely denied a voice in the matter, although his interests are substantially involved.  Furthermore, with regard to a person who is a 'voter resident' in the areaand who opposes the annexation in part, but not entirely, an opportunity to express his views to a board with discretionary power may very well be more desirable or effective than the opportunity to cast a 'yes' or 'no' vote in an election."  (Emphasis supplied.)

            The language of the court which we have emphasized certainly suggests that the court was reading RCW 35.13.173, supra, as allowing the review board to exclude or delete individual tracts or parcels from an area proposed to be annexed to a city.  Otherwise, there would have been no reason for the court to have considered the case of a person ". . . who opposes the annexation in part, but not entirely, . . ."  If the review board has no power to delete or exclude individual tracts or parcels, there is no reason to extend notice and the right to attend an open meeting to a person whose only interest is in opposing only a part of the annexation proposal.

            Furthermore, the language of RCW 35.13.173, supra, itself suggests to us a legislative intent that the review board be authorized to delete or exclude individual tracts or parcels.  Conceivably, after study and application of the numerous factors or standards set forth in RCW 35.13.173,supra, to guide it, the review board might well determine that part of the total area proposed to be annexed "is of such character that annexation would be in the public interest and for the public welfare, and in the best interest of the city, county, and other political subdivisions affected" whereas other property within the area proposed to be annexed is not of such character.  If such a determination were in fact made, it would follow that the duty of the review board would be to approve annexation of that portion of the total area which was determined to be of such character "that such annexation would be in the public interest . . ." and to disapprove the remainder of the annexation proposal.

             [[Orig. Op. Page 7]]

            It of course should be evident from what we have said that in deleting or excluding an individual tract or parcel, the review board must do so only on the basis of a determination that the property excluded or deleted is not "of such character that annexation would be in the public interest . . ."  Factors which may be brought to the attention of the review board by the property owner may be relevant in making this determination.  Under the court's decision in Meek v. Thurston County, supra, the property owner should be given full opportunity to present such factors to the review board for its consideration.  However, by the same token, it is our opinion that the review board has no authority to exclude or delete property from a proposed annexation on any other basis than that the property proposed to be annexed is not "of such character that annexation would be in the public interest . . ."  Accordingly, personal whims or desires of a land owner, not related to the overall question of public interest of an annexation proposal, should have no place in the review board proceedings.

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

Very truly yours,

JOHN J. O'CONNELL
Attorney General