CITIES AND TOWNS ‑‑ ANNEXATION OF UNPLATTED LAND -- PARKS ‑‑ STATE ‑‑ RIGHT OF FOURTH CLASS TOWN TO ANNEX

CITIES AND TOWNS ‑‑ ANNEXATION OF UNPLATTED LAND -- PARKS ‑‑ STATE ‑‑ RIGHT OF FOURTH CLASS TOWN TO ANNEX.

A town of the fourth class may not annex unplatted property of more than twenty acres without the consent of the owner; and this applies to state‑owned land, as well as to land privately owned.

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                                                                  August 5, 1957

Honorable John R. Vanderzicht
Director State Parks and Recreation Commission
General Administration Building
Olympia, Washington                                                                                                               Cite as:AGO 57‑58 No. 106

Dear Sir:

            In your previously acknowledged letter you advise that the town of Houghton, a municipal corporation of the fourth class, has taken action purporting to annex 480 acres of state land designated for use as a park and known as Bridle Trails State Park.  We have paraphrased your question as follows:

            May a city of the fourth class annex lands adjacent to its corporate boundaries which lands include a Washington state park in excess of twenty acres without the consent of the State of Washington?

            We answer in the negative.

                                                                     ANALYSIS

            RCW 35.27.020 provides as follows:

            "No more than twenty acres of unplatted land belonging to any oneperson shall be taken into the limits of municipal corporations of the fourth classwithout the consent of the owner thereof." (Emphasis supplied.)

            [Orig. Op. Page 2]

            RCW 1.16.080 provides as follows:

            "The term 'person' may be construed to include the United States, this state, or any state or territory, or any public or private corporation, as well as individual."

            In the case ofWest Coast Manufacturing & Investment Company v. West Coast Improvement Company, 25 Wash. 627, involving a conveyance of land with a full covenant of warranty of title against "all persons whatsoever," the court held that the term "person" included the state. [Orig. Op. Page 2]  In the subsequent case ofLongview Company v. Cowlitz County, 1 Wn. (2d) 64, the court stated as follows:

            ". . . The word 'person' is a generic term of comprehensive nature, embracing natural and artificial persons, such as corporations.  State ex rel. Northwestern Colonization & Imp. Co. v. Huller, 23 N.M. 306, 168 Pac. 528, 1 A.L.R. 170. . . .

            "The word 'person' has been held to include the state. West Coast Mfg. & Inv. Co. v. West Coast Imp. Co., 25 Wash. 627, 66 Pac. 97, 62 L.R.A. 763. See, also, State v. Odd Fellows Hall Ass'n, 123 Neb. 440, 243 N.W. 616. . .

            The enactment of RCW 35.27.020, supra, by the legislature was for the purpose of protecting property owners who had more than twenty acres of unplatted land from having the land annexed to a city and being subjected to increased taxes and local improvement assessments on unplatted property which could not be put to such productive use as would justify the increased tax burden. The state, therefore, in this instance is in the same position as a natural person inasmuch as the legislature has specifically provided by chapter 79.44 RCW that state lands are subject to local improvement district assessments. Accordingly, we can see no reason why the state of Washington should not be held to be a person within the terms of RCW 35.27.020, supra.

            The setting aside of this state land for park purposes does not constitute a platting thereof within the authority of the commissioner of public lands. RCW 79.12.040.

            [Orig. Op. Page 3]

            The legislature of the state of Washington has not consented to the attempted annexation, and in the absence of specific statutory authority no state official has authority to give that consent. See our opinion of March 24, 1947, to the department of finance, budget and business, 1947‑48 OAG p. 22 .

            In the absence of consent where consent is required, an attempted annexation is void. 2 McQuillin, Municipal Corporations, (3rd ed.). § 7.16, p. 299.

            Since the attempted annexation is invalid, we do not answer your questions based upon the assumption that the annexation is valid.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

JANE DOWDLE SMITH
Assistant Attorney General