CONSOLIDATED DIKING IMPROVEMENT DISTRICTS

CONSOLIDATED DIKING IMPROVEMENT DISTRICTS.

Two diking improvement districts consolidated into a single consolidated diking improvement district may not be redivided into the original two districts except as RCW 85.20.010 may apply.

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                                                                October 23, 1953

Honorable Joe L. Johnson
Prosecuting Attorney
Cowlitz County
Kelso, Washington                                                                                                     Cite as:  AGO 53-55 No. 154

Dear Sir:

            We have your inquiry of September 29, 1953, requesting an opinion of this office as to whether a consolidated diking improvement district composed formerly of two diking improvement districts may be divided into the two former districts existing prior to consolidation, and if so, the procedure therefor.

            It is our opinion that there is no statutory authority for recreating the two original improvement districts out of the present consolidated improvement district.

                                                                     ANALYSIS

            Within the laws governing the organization, consolidation, operation, expansion and dissolution of diking improvement districts, there are three provisions for the dissolution, changing boundaries and reorganization.  They are set forth as follows:

            "Dissolution.  A diking or drainage district may be dissolved by order of the superior court, upon a hearing had upon a verified petition praying for dissolution,  [[Orig. Op. Page 2]] signed by not less than two-thirds of the adult landowners of the district, owning not less than three‑fourths of the land in the district, when the court finds that not less than four weeks' notice has been given by posting in five of the most public places in the district and published in a newspaper of the county for four successive weeks next prior to the hearing; that the costs of dissolution have been advanced; and that it is for the best interest of the landowners in the district that it be dissolved.  The improvements of the district shall remain for the common use of the landowners in the district."  (RCW 85.04.190)

            "Abandonment or change in system‑-Subdistricts.  Upon a petition and bond being filed by one or more landowners, either within or without a district, and like proceedings being has as in the case of the original establishment and construction of a system of improvement, the board of county commissioners may declare a system of improvement or any part thereof abandoned or may strike from the district land no longer benefited, or it may cause the system to be altered, reduced, or enlarged, within or without the district, and to effect such subsequent improvements, may exercise any of the powers conferred upon the district.  The striking of land from a district shall not affect any assessment levied against it.  When the improvement is completed the cost thereof shall be apportioned and assessed against the land benefited as provided for apportionment and assessment in the original proceedings.  New land assessed for the improvement shall become a part of the district.  The construction and maintenance of the new improvement, unless let by contract by the county commissioners, shall be under the direction of the supervisors.  Lands assessed for the new improvement, of less than the entire district, shall be designated alphabetically, 'subdistrict       of       improvement district No.      .'"  (RCW 85.08.540)

             [[Orig. Op. Page 3]]

            "Reorganization authorized.  A drainage or diking district organized under chapter 85.04 may be reorganized as a drainage or diking improvement district, and such a diking district which has been reorganized hereunder and such a drainage district, whether it was organized as a drainage and irrigation improvement district or as a drainage district may be reorganized as a drainage and irrigation improvement district or as a diking, drainage, and irrigation improvement district."  (RCW 85.20.010)

            When Diking Improvement Districts No. 5 and No. 11 were consolidated each lost its identity as a separate improvement district except as to assessment levies existing in each district prior to consolidation.  Upon close examination of the above three statutes, we find no authority for a consolidated improvement district to reorganize as originally formed in separate districts under the statutes.  However, a consolidated improvement district may, within RCW 85.08.540, set forth above and by action of county commissioners, "declare a system of improvement or any part thereof abandoned or may strike from the district land no longer benefited or it may cause the system to be altered, reduced or enlarged within or without the district."

            Whether this action shall be taken by the Board of County Commissioners is a matter within their discretion and would be a question of fact to be determined by them after hearing and a showing being made of the need and resulting benefit of the change.

Very truly yours,

DON EASTVOLD
Attorney General

DONALD E. WATSON
Assistant Attorney General