COMPUTATION OF PORT DISTRICT PROPERTY TAX UNDER 106% STATUTORY LIMITATION

TAXATION ‑- PROPERTY ‑- PORT DISTRICTS ‑- COMPUTATION OF PORT DISTRICT PROPERTY TAX UNDER 106% STATUTORY LIMITATION

Criteria to be applied in determining maximum regular property tax levy which may be made by a port district not having levied taxes in the previous year under the 106% statutory limitation contained in RCW 84.55.010.

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                                                                 October 6, 1975

Honorable Robert L. Charette
State Representative, 19th District
100 West 1st Street
Aberdeen, Washington 98520                                                                                                               Cite as:  AGLO 1975 No. 86

Dear Sir:

            By recent letter you have requested our opinion regarding the application of chapter 84.55 RCW, commonly known as the 106% property tax limit, to levies by a certain port district.

            You have advised us that this particular port district made a property tax levy for general port purposes in 1967 and 1968,1/but in 1969 through 1971 it made no such levies for any purpose.  Then, in 1972, the district issued non-voted general obligation bonds and also made a levy of one mill which represented the highest dollar amount of the three levies.2/  Since 1972 it has again made no further levies for any purpose.

            Under these circumstances you have first asked us how the limitation on regular property tax levies provided for under chapter 84.55 RCW is to be applied with respect to the following levies proposed to be made in 1975 (for 1976 collection):

            (a) A levy for general port purposes pursuant to RCW 53.36.020.

            (b) A levy for debt service on existing non-voted general obligation bonds ‑ the bonds having been issued pursuant to RCW 54.36.030 and the levy also being made pursuant to RCW 53.36.020.

            (c) A levy for industrial development purposes pursuant to RCW 53.36.100.

             [[Orig. Op. Page 2]]   Secondly, under these same circumstances and assuming that the district makes no levy for any purposes in 1975, you have asked how the limitation provided for under chapter 84.55 RCW is to be applied with respect to the following levies to be made in 1976 (for collection in 1977):

            (a) The three levies described in question (1).

            (b) A levy for debt service on future non-voted general obligation bonds.

            (c) A levy for debt service on future voted general obligation bonds.

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

                                                                     ANALYSIS

            The basic statute involved in your request is RCW 84.55.010, which originated as § 20, chapter 288, Laws of 1971, 1st Ex. Sess.  As later amended by § 1, chapter 67, Laws of 1973, 1st Ex. Sess., to add the proviso, this statute now reads as follows:

            "Except as provided in RCW 84.55.020 through 84.55.0503/ the levy in 1973 and years subsequent thereto for a taxing district other than the state or a school district in any year shall be set so that the regular property taxes payable in the following year shall not exceed one hundred six percent of the amount of regular property taxes lawfully levied for such district in the highest of the three most recent years in which such taxes were levied for such district plus an additional dollar amount calculated by multiplying the increase in assessed value in that district resulting from new construction and improvements to property by the regular property tax levy rate of that district for the preceding year:  Provided, That if a taxing district has not  [[Orig. Op. Page 3]] levied in the three most recent years and elects to restore a regular property tax levy subject to applicable statutory limitations then such first restored levy shall be set so that the regular property tax payable shall not exceed the amount which could have been lawfully levied in 1973, plus an additional dollar amount calculated by multiplying the increase in assessed value in the district since 1973 resulting from new construction and improvements to property by the property tax rate which is proposed to be restored, or the maximum amount which could be lawfully levied in the year such a restored levy is proposed."

            We will first take up two threshold questions:  (1) The applicability of this statute to port districts and (2) its applicability to each of three types of levies described in your questions ‑ those for general port purposes, those for debt service and those for industrial development.

            By its terms, RCW 84.55.010 applies to all taxing districts "other than the state or a school district."  It is beyond doubt that a port district is a "taxing district" and therefore is subject to this section.  See, RCW 84.04.120 which provides that this term

            ". . . shall be held and construed to mean and include the state and any county, city, town, township, port district, school district, road district, metropolitan park district, water district or other municipal corporation, now or hereafter existing, having the power or authorized by law to impose burdens upon property within the district in proportion to the value thereof, for the purpose of obtaining revenue for public purposes, as distinguished from municipal corporations authorized to impose burdens, or for which burdens may be imposed, for such purposes, upon property in proportion to the benefits accruing thereto."

            The primary statute authorizing port districts to levy property taxes is RCW 53.36.020 which provides that:

            "A district may raise revenue by levy of an annual tax not to exceed forty-five cents per thousand dollars of assessed value against the assessed valuation of the taxable  [[Orig. Op. Page 4]] property in such port district for general port purposes, including the establishment of a capital improvement fund for future capital improvements, except that any levy for the payment of the principal and interest of the general bonded indebtedness of the port district shall be in excess of any levy made by the port district under the forty-five cents per thousand dollars of assessed value limitation.  The levy shall be made and taxes collected in the manner provided for the levy and collection of taxes in school districts of the first class."

            In addition, RCW 53.36.100 states that:

            "A port district having adopted a comprehensive scheme of harbor improvements and industrial developments may thereafter raise revenue, for six successive years only, in addition to all other revenues now authorized by law, by an annual levy not to exceed forty-five cents per thousand dollars of assessed value against the assessed valuation of the taxable property in such port district.  Said levy shall be used exclusively for the exercise of the powers granted to port districts under chapter 53.25 RCW except as provided in RCW 53.36.110. . . ."

            What, then, is the meaning of the term "regular property taxes" as applied to a port district?  This term is defined in RCW 84.04.140 which provides as follows:

            "The term 'regular property taxes' and the term 'regular property tax levy' shall mean a property tax levy by or for a taxing district which levy is subject to the aggregate limitation set forth in RCW 84.52.043 and RCW 84.52.050, as now or hereafter amended, or which is imposed by or for a port district or a public utility district."  (Emphasis supplied.)

            As for the applicability of this definition to RCW 84.55.010,supra, see RCW 84.04.010 which provides as follows:

            "Unless otherwise expressly provided or unless  [[Orig. Op. Page 5]] the context indicates otherwise, terms used in this title4/ shall have the meaning given to them in this chapter."5/

            In addition, it is to be noted that this definition of "regular property taxes" was enacted by § 13 of chapter 288, Laws of 1971, 1st Ex. Sess., and that the 106% limitation was first established by §§ 20 through 24 of that same chapter.

            Thus, insofar as port districts are concerned, RCW 84.55.010,supra, must be deemed to apply to all property taxes which may be levied by such a district.6/ Having so concluded, however, we are met with a further and somewhat  [[Orig. Op. Page 6]] more difficult question:  Does RCW 84.55.010 apply to each such levy separately, or to all of them collectively?

            To illustrate ‑ you have informed us that the last levy by the port district with which you are concerned (i.e., the 1972 levy) was in the amount of approximately $329,000 but that none of this levy was for industrial development purposes under RCW 53.36.100.  Thus, in applying RCW 84.55.010 with respect to the district's proposed industrial development levy in 1975 (or in 1976 if no such levy is made this year) is the 1972 levy of any significance at all?  Or, on the other hand, is that levy legally irrelevant because it did not include any amount for industrial development purposes ‑ with the result that RCW 84.55.010 should be applied to the proposed 1975 levy for industrial development purposes just as if the district had made no levy in 1972 at all?

            Neither RCW 84.55.010 itself nor RCW 84.04.140 (the definition of "regular property taxes") provides a clear and conclusive answer to this question.  In view of the obvious purpose of the 106% limitation, however, we conclude that RCW 84.55.010 should be applied to all of the levies of a port district collectively.

            The primary purpose of this statute is clearly to protect the taxpayers from substantial increases in their property tax burdens arising from increases in the assessed valuation of their property because of revaluation.  This is evidenced by the special treatment given by the statute to increases in assessed valuation in a taxing district arising, instead, from new construction and improvements.  The focus of the legislature's concern, accordingly, was on the total tax burden imposed by a given district and not on the purposes for which the district might use its tax revenues.  In essence, the language of RCW 84.55.010 therefore imposes a limit upon a district's "irregular property taxes" in the aggregate ‑ and in the case of a port district this means all of its property taxes regardless of purpose.  By the same token, we do not read into the statute a legislative intent to prevent such a district from changing the purposes of a levy from year to year so long as the total burden on the district's taxpayers remains within the 106% limit.

            There is, however, still another issue to be explored; namely, whether the levies in this case may nevertheless be  [[Orig. Op. Page 7]] considered separately7/ because of the proviso to the statute which was added by chapter 67, Laws of 1973, 1st Ex. Sess.  Repeated for ease of reference, this proviso reads as follows:

            ". . .Provided, That if a taxing district has not levied in the three most recent years and elects to restore a regular property tax levy subject to applicable statutory limitations then such first restored levy shall be set so that the regular property tax payable shall not exceed the amount which could have been lawfully levied in 1973, plus an additional dollar amount calculated by multiplying the increase in assessed value in the district since 1973 resulting from new construction and improvements to property by the property tax rate which is proposed to be restored, or the maximum amount which could be lawfully levied in the year such a restored levy is proposed."

            By its express terms, this proviso only becomes operative if ". . . a taxing district has not levied . . ." in the three most recent years; i.e., if the district has made no levy at all in those years.  As we understand it, the proviso stemmed from the experience of a particular port district which had made an otherwise unneeded levy in 1972 solely in order to have a base which would allow it to make levies under RCW 84.55.010 in 1973 or other subsequent years.  Its purpose was to preserve the ability of other taxing districts to levy in 1973 and subsequent years without having to make such an unnecessary levy.8/

             [[Orig. Op. Page 8]]   Thus, any levy by a taxing district, in any amount and for any purpose, within the last three years will place the district outside of the scope of the proviso.  In terms of the port district which is the subject of your opinion request, this district therefore may not justify an unlimited levy for industrial development purposes in 1975 on the ground that since it had made no levy for that purpose in the last three years the proviso allows it to do so.  The fact that the district made a levy in 1972, even though it was not for industrial development purposes, makes the proviso inapplicable to any levy in 1975, including one for those purposes.  On the other hand, of course, if no levies are made in 1975 the proviso most certainly will come into play with respect to its 1976 levies ‑ the subject of your second question.  But even there, the proviso does not support a separate, as distinguished from an aggregate, levy approach in applying the basic limiting provisions of RCW 84.55.010.

            With this, we turn to your two specific questions.

            Question (1):

            Having determined that the proviso will not be applicable with respect to any of the subject port district's proposed 1975 levies, and that an aggregate levy approach should be used in applying RCW 84.55.010, we can address your first question directly.  Before doing so, however, let us again quote for ease of reference the applicable portion of this statute:

            "Except as provided in RCW 84.55.020 through 84.55.050, the levy in 1973 and years subsequent thereto for a taxing district other than the state or a school district in any year shall be set so that the regular property taxes payable in the following year shall not exceed one hundred six percent of the amount of regular property taxes lawfully levied for such district in the highest of the three most recent years in which such taxes were levied for such district plus an additional dollar amount calculated by multiplying the increase in assessed value in that district resulting from new construction and improvements to property by the regular property tax levy rate of that district for the preceding year: . . ."

             [[Orig. Op. Page 9]]   We again note that the district with which you are concerned made levies in 1967, 1968, and 1972.  You have informed us that the 1972 levy represented the highest dollar amount of the three.  Accordingly, it is the amount of that levy (approximately $329,000) which is the ". . . amount of regular property taxes lawfully levied for such district in the highest of the three most recent years in which such taxes were levied. . ."9/ That amount, in short, in this case represents the base to which the 106% factor is to be applied.  Once the product of that calculation is determined,10/ however, there will then be added to it an amount reflecting new construction and improvements ‑ which leads us to the next area here to be explored.

            In determining this additional amount two further questions arise.  The first is that of what "regular property tax levy rate of . . . [the] district" is to be applied to the increase in assessed value attributable to new construction and improvements in view of the fact that the district with which we are here concerned levied no taxes at all "for the preceding year."  To say that the rate to be used is to be the actual levy rate utilized in theimmediately preceding year (i.e., 1974) would thus produce a patently absurd result since, in this case, that rate would be zero.  Therefore, to avoid such an absurdity11/ we conclude that the rate which should here be applied is that which was used in 1972; i.e., in the last preceding year in which taxes were in fact levied by the district in question.

            In so concluding we of course recognize a small mechanical problem which this approach will produce.  In 1972, levy rates in this state were expressed in mills and were applied to assessed valuations computed on the basis of fifty percent of true and fair value.  Under chapter 195, Laws of 1973, 1st Ex. Sess., on the other hand, levy rates are now expressed in dollars of tax per thousand dollars of assessed valuation and assessed valuation is now to be at one hundred percent of true and fair value of the property  [[Orig. Op. Page 10]] to be taxed.  The solution is simply for the millage rate actually used in 1972 to be converted to conform to the present system.  Thus, if the 1972 rate was one mill, as you have indicated, the rate to be applied to the district's increase in assessed valuation attributable to new construction and improvements in 1975 should be fifty cents per thousand dollars in that, as you will readily discern, one mill applied to each dollar of assessed valuation, computed at fifty percent of true and fair value, is the same as fifty cents applied to each thousand dollars of assessed valuation, computed at one hundred percent of true and fair value.

            The second question relative to new construction and improvements is whether the "increase in assessed value . . . resulting from new construction and improvements" will here mean only such increase as has occurred in 1975; or, instead, will it include the total of all such increases from and after May 1, 1972.12/

            It will readily be noted that this last quoted language from the original statute is different from that of the 1973 proviso relating to new construction.  Under the proviso, the additional amount reflecting new construction is expressly required to be cumulative since 1973 ‑ the applicable language reading:

            ". . . plus an additional dollar amount calculated by multiplying the increase in assessed value in the district since 1973 resulting from new construction and improvements. . . .      This difference in language, however, appears to us merely to be attributable to the fact that in enacting the 1973 proviso, the legislature was expressly addressing itself to those situations in which given taxing districts had failed to make any levies for at least three previous years, whereas with the original statute the legislature was basically contemplating instances in which (as evidenced by its use of the phrase "levy rate for the preceding year") such districts had not skipped one or more years in making their levies.

            Moreover, we believe that the answer to this question regarding new construction should be consistent with our answer to the first question involving this aspect of the  [[Orig. Op. Page 11]] statute.  Thus, we conclude that in this case the total of all increases from new construction and improvements since May 1, 1972, should be taken into account, since 1972 was the last year in which a levy was made and therefore was the "preceding year" for purposes of determining the levy rate.  This conclusion also affords similar treatment both to those taxing districts which have failed to make a levy within the immediately preceding one or more years and those which have not made a levy within the preceding three or more years.  It is also consistent with what we view to be the basic purpose of the statute; i.e., protection of the taxpayers from increased tax burdens attributable to increases in assessed valuation by reason of revaluation.

            To summarize:  In applying RCW 84.55.010 so as to establish the aggregate limitation thereunder on the subject port district's proposed 1975 property tax levies, the first step is to multiply its total 1972 levy by 106%.  The second step is then to add to this first amount an amount determined by multiplying increases in assessed value attributable to new construction since May 1, 1972, by the 1972 levy rate, translated into 1975 terms as last above explained.  The sum of these two amounts will be the maximum dollar amount for 1975 levies.

            Finally, we should emphasize once again that this maximum dollar amount is applicable to all three of the proposed 1975 levies, in the aggregate.  Subject to otherwise applicable rate limitations, such as those in RCW 53.36.020,supra, each levy may be in such amount as the district determines ‑ so long as the aggregate limit is not exceeded.

            Question (2):

            Your second question assumes that because of our answer to your first, or for other reasons, the port district decides to make no property tax levy of any sort in 1975 (for 1976 collection) and, instead, waits until 1976 to make its next levy; i.e., its first since 1972.  How, you have asked, will RCW 84.55.010 operate with respect to the 1976 levies which you have described under this set of circumstances.

            To begin with, for the same reasons we gave earlier in answering your first question, the statute will constitute a limitation upon the aggregate amount of regular property taxes which may be levied by the district in that year ‑ i.e., the aggregate amount of all of its property taxes ‑ including those for debt service or industrial development.  In this regard the 1973 proviso to the statute which will apply in  [[Orig. Op. Page 12]] this alternative situation is no different from the original part of the statute.

            The reason that the proviso, and not the main part of the statute, will apply in the case posited by your second question is based upon the particular facts involved in your request.  The district did, in fact, make levies in three different years; i.e., 1967, 1968, and 1972.  Accordingly, if it makes no levies in 1975, it would, absent the proviso, compute the aggregate limit for its proposed 1976 levies in exactly the same manner as we have described in our answer to question (1).  Thus it would be in quite a different position from a district which had never made any levy in any prior year ‑ for such a district would have no base year and would thereby be prevented from making any levy at all.

            The proviso, however, expressly applies to any taxing district that "has not levied in the three most recent years" and thus the port district in question would also be within its express terms were it to omit all 1975 levies.  Accordingly, it necessarily follows that the proviso is applicable and that the first part of the statute is not.

            Having so concluded, the next point which we must resolve is the meaning of the phrase ". . . and elects to restore a regular property tax levysubject to applicable statutory limitations . . ." as this phrase appears in the proviso.  Do the statutory limitations thus referred to include RCW 84.55.010 itself?  Or do they include onlyother statutory limitations such as the forty-five cents per thousand dollar limitation contained in RCW 53.36.020,supra?  In our opinion, the answer is the latter.  As above noted, there could, in the absence of the proviso, have been cases in which given taxing districts ‑ because they had made no levies at all in any prior year ‑ would be unable to make any levies under the terms of RCW 84.55.010.  Thus, in such cases, a reading of the limitations of RCW 84.55.010 into the above quoted phrase would, in effect, make the proviso inoperative in the very cases to which it was obviously designed to apply.

            The next sub‑question is similar to the last one:  Does the phrase, ". . . the amount which could have been lawfully levied in 1973 . . ." which also appears in the proviso likewise refer only to the amount which could have been lawfully levied apart from the limitations of RCW 84.55.010 itself?  Again, for the same reasons as required a similar answer to the immediately preceding question, we would conclude that it does.

            The position which we have thus taken with respect to these two related issues arising under the proviso is further in accord with its basic purpose as explained during  [[Orig. Op. Page 13]] the Senate discussion on the bill by which chapter 67, Laws of 1973, 1st Ex. Sess., was enacted.  At pp. 1206-1207 of the 1973 Senate Journal we find the following:

            "Senator Bailey: . . .  'This bill merely says if a district does not levy anything, they still have not given up their basic right to levy.  Now this could be true in a fire district, say, that was established a few years ago or any other district that has not gotten into active participation that has a legal right to levy.  The mere fact that they have not needed the money now is no reason to force them into that levy they do not need.  Six percent of nothing remains nothing and this gives them the base to work from.  It is an effort really to lower and not force taxes to the limit.'

            "POINT OF INQUIRY

            "Senator Canfield:  'Senator Bailey, if I understand correctly then, if they have not levied these taxes in the past three years it still would not destroy the new base.  Is that what you are saying?'

            "Senator Bailey:  'Senator Canfield, it does not only say that, it says if they have not levied the tax, you see the way the new tax bill was written, this year's budget is the base year.  Next year they can only levy six percent above that, so those districts that are not levying now have no base to start from.  This would establish and give them ‑ if they do not levy for the next two or three or four years they still can come back to the year 1973 and use that as a base.  This is all that it does.'

            "Senator Canfield:  'What I am trying to say, it does not allow them to go back and pick up back levies but simply establishes a new base.'

            "Senator Bailey:  'Just a new base. . . .'"

            As is apparent from this legislative history, the proviso was intended principally to apply to districts which,  [[Orig. Op. Page 14]] by reason of their failure to make any levies at all in years prior to 1973, were prevented by the original terms of RCW 84.55.010 from making any levy in 1973 and subsequent years.  The district involved in your opinion request, although also within the scope of the proviso as above explained, has in fact made levies in 1967, 1968, and 1972, and thus would not have been prevented from making a levy in 1973 and subsequent years by RCW 84.55.010 as it read prior to addition of the proviso.  Nevertheless, we believe we must construe the proviso in a manner that gives effect to its primary purpose; i.e., to afford relief to those districts which otherwise would have been prevented from making any levy at all.

            Finally, we must construe the phrase ". . . or the maximum amount which could belawfully levied in the year such a levy is proposed . . ."  Again, for the same reasons as above given, we believe that "lawfully levied" has reference to levy limitations apart from RCW 84.55.010 itself.

            Still another problem, however, remains.  This "maximum amount" involves a limit which is an alternative to that consisting of the sum of the "amount which could have been lawfully levied in 1973," and the additional dollar amount reflecting new construction.  But which alternative is to be used when one limit is (as would normally be the case) different from the other?  Should the higher be used? Or the lower?

            We believe that the lower limit must be used ‑ even though we recognize that the phrase "whichever is the lesser amount" that was originally contained at the end of the proviso as passed by the House was stricken by the Senate.  See, Senate Journal, 1973 Session, p. 1208.  The reason for striking this phrase is less than clear.  Perhaps it was considered as surplusage.  In any case, we must conclude that it is impliedly still within the proviso.  Either that phrase or the converse phrase "whichever is the higher amount" must necessarily be implied; otherwise we would not have true alternative limits.  But if we imply the latter phrase, the limit using 1973 as the base year would have no practical effect ‑ for the taxing district would be able to disregard that limit whenever it was lower than the other one ‑ and would be required, by reason of levy rate limits such as those in RCW 56.36.020, to disregard that limit when it was higher.

            Bearing all of these conclusions regarding the proviso in mind, we may now state our answer to your second question, in summary form as follows:

             [[Orig. Op. Page 15]] If the subject port district makes no levy in any amount for any purpose in 1975, and instead makes the levies described in that question in 1976, the procedures to be followed in applying RCW 84.55.010 (and specifically, the proviso thereto) will be:

            (1)  Determine the amount which "could have been lawfully levied in 1973."  This will be done by adding up the amounts of each separate levy which could have been made in that year ‑ using 1973 assessed valuations and also applying 1973 levy rate limitations apart from RCW 84.55.010 itself; i.e., those contained in RCW 53.36.020 (general port purposes) and in RCW 53.36.100 (industrial development)13/ as of 1973.14/