COUNTY ROAD IMPROVEMENT DISTRICTS ‑- CONSOLIDATION OF PETITIONS ‑- SEPARATE COST ACCOUNTING AND ASSESSMENTS

COUNTY ROAD IMPROVEMENT DISTRICTS ‑- CONSOLIDATION OF PETITIONS ‑- SEPARATE COST ACCOUNTING AND ASSESSMENTS.

Separate road improvement petitions can be consolidated into one road improvement district by the Board of County Commissioners on due notice given to property owners.  Non-continuing [[noncontinuing]]road improvement districts require separate cost accounting and separate assessment.

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                                                                  August 9, 1957

Honorable Don J. Clark
Prosecuting Attorney
Yakima County
Yakima, Washington

                                                                                                              Cite as:  AGO 57-58 No. 109

Dear Sir:

            This is in answer to your request for our opinion on the several questions relative to the creation of county road improvement districts.  We paraphrase your questions as follows:

            1. If petitioned for jointly, can two or more parallel roads within one square mile be combined in one improvement district?

            2. If petitioned separately, but processed jointly, can the petitions be combined in one district?

            3. If combined, and the character of improvement and unit cost of construction are substantially the same, would separate cost accounting and assessment for each individual road be required?

            4. In the event of the completion of the petition for the improvement of two or more roads by the formation of a road improvement district could the petition for the improvement of an additional road be combined with and added to the aforesaid petition?

             [[Orig. Op. Page 2]]

            We answer your first and third questions in the affirmative and question two is answered in the affirmative as modified in the analysis.  Question four is answered in the negative.

                                                                     ANALYSIS

            County road improvement districts are authorized under RCW 36.88.010, which reads in part as follows:

            "Class A counties and counties of the first class shall have the power to create county road improvement districts for the improvement of existing county roads . . . and said counties shall have the power to levy and collect special assessments against the real property specially benefited thereby for the purpose of paying the whole or any part of the cost of such construction or improvement: . . .And provided, That no road improvement district shall be created under this chapter unless the property within the proposed district shall be so developed by the construction of permanent urban improvements that the average number of dwelling units or units of business occupancy per one thousand feet of property fronting upon the portion of road to be improved shall at least be six:  And provided further, That no road improvement district shall exceed one mile square."

            The essential prerequisites for a road improvement district as set out above are those of development and area.  The roads involved here are within the area limitation and we assume that each road that has been or will be petitioned for has met the development requirements.

            The formation of a road improvement district can be initiated by resolution of the board of county commissioners or by petition of the property owners.  The pertinent statutory provision is as follows:

            "County road improvement districts may be initiated either by resolution of the board of county commissioners or by petition signed by the owners according to the records of the office of the county auditor of property to an aggregate amount of the majority of the lineal frontage upon the contemplated improvement and of the area within the limits of the county road improvement district to be created therefor."  (RCW 36.88.020)

             [[Orig. Op. Page 3]]

            The procedure of forming a road improvement district by petition is set forth in RCW 36.88.050.  This statute provides among other things, that the petition give the nature and extent of the proposed improvement and that the signers are the owners of a majority of the lineal frontage upon the improvement to be made and within the limits of the assessment district to be created.  It provides for a review by the board of county commissioners as to its legal sufficiency and the adoption of a resolution of intention by the board.  The method of notice which must be given to the property owners is also set forth in the statute.

            The statutory provision prescribing the public hearing to be held by the board of county commissioners is set out in RCW 36.88.060, which reads in part as follows:

            "Whether the improvement is initiated by petition or resolution the board shall conduct a public hearing at the time and place designated in the notice to property owners.  At this hearing, the board may make such changes in the boundaries of the district or such modifications in the plans for the proposed improvement as shall be deemed necessary:  Provided, That the board may neither so alter the improvement as to increase the estimated cost by an amount greater than ten percent above that stated in the notice, nor increase the proportionate share of the cost to be borne by assessments from the proportion stated in the notice, nor change the boundaries of the district to include property not previously included therein without first passing a new resolution of intention and giving a new notice to property owners, in the manner and form and within the time herein provided for the original notice."  (Emphasis supplied.)

            Under that statute the board of county commissioners, at the public hearing on the petition, has the discretionary authority to change the boundaries of the district only if such change does not add new property to the district or increase the estimated cost by more than ten per cent or increase the proportionate share of the cost to be borne by assessments.

            It is clear from the above quoted statutory provision that two parallel roads can be combined in one improvement district if they are included in one petition so long as they do not exceed the statutory limitation of one square mile.

            In answer to your second question, under the provisions of RCW 36.88.060, it is our opinion that where two petitions are filed with the board of county  [[Orig. Op. Page 4]] commissioners those petitions cannot be combined into one improvement district by the county commissioners without following the statutory requirement of a new resolution of intention and the giving of the required notice under the statute.

            With regard to your third question the controlling statutes applicable to the question of separate cost accounting and assessment for noncontinuing roads in a road improvement district are as follows:

            RCW 36.88.080:

            "Every resolution ordering any improvement mentioned in this chapter, payment for which shall be in whole or in part by special assessments shall establish a road improvement district which shall embrace as near as may be all the property specifically benefited by such improvement and the provisions of chapters 35.43 and 35.44 [[chapter 35.43 and 35.44 RCW]], governing the method of assessment for local improvement districts in cities and towns shall apply to county road improvement districts created under this chapter: . . ."

            RCW 35.43.050:

            "A local improvement district may include adjoining, vicinal or neighboring streets, avenues, and alleys even though the improvement thus made is not connected or continuous:  Provided, That the cost and expense of each continuous unit of the improvement shall be ascertained separately, as near as may be, and the assessment rates shall be computed on the basis of the cost and expense of each unit."  (Emphasis supplied.)

            We are of the opinion that RCW 35.43.050 makes it mandatory that where a county road improvement district contains separate noncontinuing roads, regardless of whether or not the character of the improvements and the costs of construction are substantially the same, separate cost accounting and separate assessment for each individual road is required.

            In answer to your fourth question, we are unable to find any provision in the statutes which authorizes or provides a method of adding additional improvements once a resolution of formation has been adopted.  RCW 36.88.350 provides for maintenance of said improvements, however, as follows:

             [[Orig. Op. Page 5]]

            "After the completion of any construction or improvement under this chapter, all maintenance thereof shall be performed by the county at the expense of the county road fund, excepting furnishing electric energy for and operating and maintaining street and road lighting systems."

            Thus, in the event that the petition for the improvement of two or more roads had been processed only to the extent of having been filed with the board of county commissioners, a petition for the improvement of an additional road could be combined and added to the aforesaid petition only by following the same statutory requirements as are set forth in answer number two.  However, if the petition for the improvement of two or more roads had resulted in a formation of a local improvement district, it is our opinion that the only alternative is the petition for the formation of the new local improvement district for the improvement of the additional road.

            We trust the foregoing will be of assistance.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CLARENCE H. FIDLER
Assistant Attorney General