DISTRICTS ‑- LOCAL IMPROVEMENT ‑- FORMATION BY RESOLUTION OF CITY COUNCIL ‑- PROTEST

DISTRICTS ‑- LOCAL IMPROVEMENT ‑- FORMATION BY RESOLUTION OF CITY COUNCIL ‑- PROTEST

If a protest against the formation of a local improvement district in a particular city under RCW 35.43.140 is signed by property owners whose property will bear sixty percent or more of the total cost of the improvement to be assessed against and borne by property owners within the proposed district, the city must be regarded as having been divested of jurisdiction and may not proceed.

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                                                                   March 1, 1973

Honorable James P. Kuehnle
State Representative, 4th District
Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1973 No. 32

Dear Sir:

            By recent letter you have asked for our opinion with respect to the legal requisites of a protest against the formation of a local improvement district by resolution of a city council under the provisions of chapter 35.43 RCW.  We respond to this request in the manner set forth in the following analysis.

                                                                     ANALYSIS

            Among the methods provided for by law for the initiation of proceedings to form a local improvement district in a city or town is the passage of a resolution to this effect by the city council or other legislative body of the municipality.  See, RCW 35.43.140.  However another section of this chapter, RCW 35.43.180, provides that:

            "The jurisdiction of the legislative authority of a city or town to proceed with any local improvement initiated by resolution shall be divested by a protest filed with the city or town council within thirty days from the date of passage of the ordinance ordering the improvement, signed by the owners of the property within the proposed local improvement district or utility local improvement district subject to sixty percent or more of the total cost of the improvement including federally-owned or other nonassessable property as shown and determined by the preliminary estimates and assessment roll of the proposed improvement district . . ."

            Although your letter suggests an understanding on your part that the sufficiency of a protest petition is to be determined on the basis of property ownership ‑ i.e., opposition by at least sixty percent of the landowners in the proposed LID ‑ the statute in fact does not  [[Orig. Op. Page 2]] key in upon property ownership,perse, but instead upon the monetary cost of the proposed improvement.  In order to be sufficient a protest petition must be signed by the owners of property within the proposed improvement district which will be subject to sixty percent or more of the total cost of the road or other improvement to be made.

            Viewed in this light, the essential issue raised by your question is whether the city in question may include its own anticipated expenditures toward construction of the improvement in calculating its "total cost" for the purpose of determining the sufficiency of a protest petition.  Based upon recent decisions of our state supreme court in Kasper v. Edmonds, 69 Wn.2d 799, 420 P.2d 346 (1966), andThymian v. Massart, 69 Wn.2d 806, 420 P.2d 351 (1966), this question must be answered in the negative.

            In these two companion cases the court held that the words "total cost of the improvement" as used in RCW 35.43.180, supra, refer only to that portion of the project's total projected costs which is to be assessed against and borne by the property owners, excluding such additional portion as is to be paid by the city from municipal funds.  In so ruling the court noted, but simply disagreed with, a prior formal opinion of this office (AGO 61-62 No. 109) [[to Robert A. Perry, State Representative on April 4, 1962]]wherein a contrary conclusion had been reached through application of what we then regarded to be the correct rules of statutory construction.

            We must, of course, accept this decision by our supreme court as determinative of the question.  Accordingly, on the basis of the test set forth in these two cases, it follows that if a protest against the formation of a local improvement district in a particular city under RCW 35.43.140 is signed by property owners whose property will bear sixty percent or more of the total cost of the improvement to be assessed against and borne by property owners within the proposed district, the city must be regarded as having been divested of jurisdiction and may not proceed.

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

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General