FIRE PROTECTION DISTRICTS ‑- ANNEXATION ‑- BOUNDARIES ‑- TAXATION ‑- MUNICIPAL CORPORATIONS ‑- BOUNDARY REVIEW BOARDS

FIRE PROTECTION DISTRICTS ‑- ANNEXATION ‑- BOUNDARIES ‑- TAXATION ‑- MUNICIPAL CORPORATIONS ‑- BOUNDARY REVIEW BOARDS

1.         A fire protection district may withdraw an area from the boundaries of the district pursuant to RCW 52.04.056 without first referring such action to a vote of the property owners residing within the withdrawn area. 

2.         A fire protection district may not provide fire and emergency medical services, on a regular basis, to an area that has been withdrawn from the district pursuant to RCW 52.04.056. 

3.         A fire protection district that has withdrawn an area from its boundaries pursuant to RCW 52.04.056 may not "reannex" the area in the same year and thus provide the area with services without subjecting the property in the area to a tax levy for the year. 

4.         Where a fire protection district withdraws territory pursuant to RCW 52.04.056 which constitutes only a portion of another taxing district, and the boundaries of the fire protection district are reestablished after March 1 of a given year, the year's tax levy will be based on the former and not on the reestablished boundaries. 

5.         The procedures in RCW 52.04.056, which govern the withdrawal and reannexation of territories of fire protection districts in certain circumstances, are not subject to the boundary review procedures set forth in chapter 36.93 RCW.

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                                                                   March 9, 1989

Honorable John Ladenburg
Pierce County Prosecuting Attorney
946 County-City Building
Tacoma, WA 98402-2171

Cite as:  AGO 1989 No. 6                                                                                                                  

 Dear Mr. Ladenburg:

             By letters previously acknowledged, you requested our opinion on several questions that we have paraphrased as follows:

              [[Orig. Op. Page 2]]

                         1.         May a fire protection district withdraw an area from the boundaries of the district pursuant to RCW 52.04.056 without first referring such action to a vote of the property owners residing within the withdrawn area for their approval?

                         2.         May a fire protection district provide fire and emergency medical services, on a regular basis, to an area that has been withdrawn from the district pursuant to RCW 52.04.056, without requiring compensation in return for such services?

                         3.         May a fire protection district that withdraws an area from its boundaries pursuant to RCW 52.04.056, thus not extending its tax levy over the withdrawn area, provide free services to the untaxed area by "reannexing" it to the district pursuant to RCW 52.04.056?

                         4.         Where territory constituting only a portion of another taxing district is withdrawn from a fire protection district pursuant to RCW 52.04.056, and the boundaries of the fire protection district are reestablished after March 1 of a given year, will that year's tax levy be based on the reestablished boundaries?

                         5.         Are the procedures in RCW 52.04.056, which govern the withdrawal and reannexation of territories to fire protection districts, subject to the boundary review board statutes set forth in chapter 36.93 RCW?

             We answer your first question in the affirmative.  We answer your second, third, fourth, and fifth questions in the negative.

                                                                 BACKGROUND

            Your questions require us to examine RCW 52.04.056.  This statute, passed by the Legislature in 1987, see Laws of 1987, ch. 138, § 3, p. 457, was occasioned by the operation of state tax laws that strictly limit the total tax levy that may be levied on property.  RCW 84.52.043 provides that the total property tax levy authorized without a vote of the people shall not exceed $9.15 per $1,000 of assessed property value.  This $9.15 limit includes, with only a few exceptions, nearly all taxes that may be levied by taxing districts (i.e., the State, counties, cities, towns, and special purpose districts) on any parcel of property.  Because taxing districts frequently overlap, some districts often must reduce or entirely eliminate their levies to keep the total levy under the $9.15 limit.   [[Orig. Op. Page 3]] RCW 84.52.010 establishes a priority system for such reductions.  Senior taxing districts (i.e., the State, county, county road district, and cities and towns) are to impose their levies first; junior taxing districts, including fire protection districts, impose their levies next, in a statutorily established order.  Thus, a fire protection district that overlaps with the whole or a portion of one or more other taxing districts may find its tax levy substantially reduced or even eliminated.  Moreover, because of the requirement of article 7, section 1 of the Washington Constitution that "[a]ll taxes shall be uniform upon the same class of property within the territorial limits of the [taxing] authority", any such levy reduction must be applied uniformly throughout the district.

             RCW 52.04.056 enables a fire protection district to avoid these tax levy reductions by withdrawing areas from its boundaries.1/    The statute also allows a district to reannex territory previously withdrawn.  RCW 52.04.056 provides:

                         (1) As provided in this section, a fire protection district may withdraw areas from its boundaries, or reannex areas into the fire protection district that previously had been withdrawn from the fire protection district under this section.

                         (2) The withdrawal of an area shall be authorized upon:  (a) Adoption of a resolution by the board of fire commissioners requesting the withdrawal and finding that, in the opinion of the board, inclusion of this area within the fire protection district will result in a reduction of the district's tax levy rate under the provisions of RCW 84.52.010; and (b) adoption of a resolution by the city or town council approving the withdrawal, if the area is located within the city or town, or adoption of a resolution by the county legislative authority of the county within which the area is located approving the withdrawal, if the area is located outside of a city or town.  A withdrawal shall be effective at the end of the day on the thirty-first day of December in the year in which the resolutions are adopted, but for purposes of establishing boundaries for property tax purposes, the boundaries shall be established immediately upon the adoption of the second resolution.

             [[Orig. Op. Page 4]]

                        The authority of an area to be withdrawn from a fire protection district as provided under this section is in addition, and not subject, to the provisions of RCW 52.04.101.

                        The withdrawal of an area from the boundaries of a fire protection district shall not exempt any property therein from taxation for the purpose of paying the costs of redeeming any indebtedness of the fire protection district existing at the time of the withdrawal.

                         (3) An area that has been withdrawn from the boundaries of a fire protection district under this section may be reannexed into the fire protection district upon:  (a) Adoption of a resolution by the board of fire commissioners proposing the reannexation; and (b) adoption of a resolution by the city or town council approving the reannexation, if the area is located within the city or town, or adoption of a resolution by the county legislative authority of the county within which the area is located approving the reannexation, if the area is located outside of a city or town.  The reannexation shall be effective at the end of the day on the thirty-first day of December in the year in which the adoption of the second resolution occurs, but for purposes of establishing boundaries for property tax purposes, the boundaries shall be established immediately upon the adoption of the second resolution.  Referendum action on the proposed reannexation may be taken by the voters of the area proposed to be reannexed if a petition calling for a referendum is filed with the city or town council, or county legislative authority, within a thirty-day period after the adoption of the second resolution, which petition has been signed by registered voters of the area proposed to be reannexed equal in number to ten percent of the total number of the registered voters residing in that area.

                         If a valid petition signed by the requisite number of registered voters has been so filed, the effect of the resolutions shall be held in abeyance and a ballot proposition to authorize the reannexation shall be submitted to the voters of the area at the next special election date specified in RCW 29.13.020 that occurs forty-five or more days after the petitions have been validated.  Approval of the ballot proposition authorizing the reannexation by a simple majority vote shall authorize the reannexation.

              [[Orig. Op. Page 5]]

 Question 1

             Your first question, repeated here for ease of reference, asks:

             May a fire protection district withdraw an area from the boundaries of the district pursuant to RCW 52.04.056 without first referring such action to a vote of the property owners residing within the withdrawn area for their approval?

 In view of the plain language of RCW 52.04.056, we answer in the affirmative.

             The primary objective of statutory construction is to carry out the intent of the Legislature, which must be determined primarily from the language of the statute itself.  State v. Neslund, 103 Wn.2d 79, 82, 690 P.2d 1153 (1984).  Where that language is plain and unambiguous, it should be given effect without resort to rules of statutory construction.  State v. Theilken, 102 Wn.2d 271, 275, 684 P.2d 709 (1984).

             Here, the language of RCW 52.04.056(2) is clear.  Territory may be withdrawn from a fire protection district upon the passage of appropriate resolutions by the district's board of commissioners and by either the city or town council or the county legislative authority (the latter depending on whether the territory to be withdrawn lies inside or outside a city or town).  No statutory directive in RCW 52.04.056(2) submits this question to a vote of the property owners residing within the affected territory.

             Where the Legislature has intended to require a direct vote of the people before an annexation or withdrawal of territory from a municipality, it has indicated this intent expressly.  For example, RCW 52.04.056(3), which governs reannexation of territory previously withdrawn under RCW 52.04.056(2), expressly provides for a referendum on reannexation if the "voters of the area proposed to be reannexed" file an appropriate referendum petition.  RCW 52.04.101, which establishes an alternate method for cities or towns to withdraw from fire protection districts, expressly requires such a withdrawal to be submitted to the voters of the affected area.  RCW 52.04.056(2), in contrast, does not contain this requirement.

             You have expressed concern that if the property owners residing within the withdrawn territory are not afforded an opportunity to vote directly on the question of withdrawal, they may not be assured of receiving necessary fire and emergency medical services following withdrawal from the district.  The Legislature, however, has implicitly determined that the  [[Orig. Op. Page 6]] interests of residents will be adequately protected by requiring either their city or town council or their county legislative authority to approve, by resolution, any withdrawal request made by the fire district.  The wisdom of this determination is not for us to question.  Rather, our goal is to ascertain legislative intent.  State v. Neslund, 103 Wn.2d at 82.  The Legislature, in the absence of constitutional restrictions, may prescribe the manner in which municipal boundaries may be altered.  2 E. McQuillin,Municipal Corporations § 7.10, at 395 (3d rev. ed. 1988).  Moreover, where territory is to be annexed, the Legislature clearly may authorize such annexation "without the consent and even against the remonstrance of the majority of persons in either the annexed territory or the [municipal] corporation to which it is being joined."  State ex rel. Bowen v. Kruegel, 67 Wn.2d 673, 680, 409 P.2d 458 (1965).  We believe the same principle applies to the withdrawal of territory from fire protection districts.

             For these reasons, we answer your first question in the affirmative.

 Question 2

             Your second question, repeated here for ease of reference, asks:

             May a fire protection district provide fire and emergency medical services, on a regular basis, to an area that has been withdrawn from the district pursuant to RCW 52.04.056, without requiring compensation in return for such services?

             In particular, you have referred us to RCW 52.12.111, which provides:

             A fire protection district may permit, under conditions prescribed by the fire commissioners of the district, the use of its equipment and personnel beyond the boundaries of the district.  Any use made of the equipment or personnel under this section shall be deemed an exercise of a governmental function of the district.

 This statute does not directly answer your question.  While it expressly permits the use of fire district personnel and equipment outside district boundaries "under conditions prescribed by the fire commissioners of the district", it does not expressly permit this to be done on a regular basis without compensation.  Fire districts, like other municipal  [[Orig. Op. Page 7]] corporations,2/ have only those powers expressly granted by the Legislature or the state constitution, together with those powers necessarily implied from such express grants.  Spokane v. J-R Distribs., Inc., 90 Wn.2d 722, 726, 585 P.2d 784 (1978).  To determine whether RCW 52.12.111 impliedly authorizes a fire district to provide fire and emergency medical services on a regular basis to an area that has been withdrawn from the district, without receiving any compensation in return, we must apply ordinary rules of statutory construction.  Foremost here is the rule that RCW 52.12.111 not be construed in isolation, but rather in the context of the fire district statutory scheme as a whole.  See Department of Fisheries v. Chelan Cy. Pub. Util. Dist. 1, 91 Wn.2d 378, 382, 588 P.2d 1146 (1979).  When the statute is so construed, we do not believe RCW 52.12.111 confers such authority on fire districts.3/

              The chief purpose of a municipal corporation is to serve the "interest, advantage and convenience of the locality and its people."  1 E. McQuillin,Municipal Corporations § 2.08, at 159 (3d rev. ed. 1987).  Fire districts are no different in this regard.  They are established primarily to provide fire and emergency medical services to residents of the district, in return for which the district may tax property lying within its boundaries to finance these services.  These purposes are clearly delineated in the fire district statutes, Title 52 RCW.  RCW 52.02.030 states that a petition to establish a fire district may be filed, where this "will be a benefit to the property included in the district".  Fire protection services may be provided under RCW 52.12.031(1); property lying within the district may be taxed to finance such services under RCW 52.16.080 and [52.16].130.

             Persons residing outside the district may receive the district's services by either of two methods.  They may annex their territory to the district, see generally RCW 52.04 [chapter 52.04 RCW], or they may receive such services by contracting with the district, RCW 52.12.031(3).  By the former method, the territory annexed to the district becomes subject to taxation; by the latter method, the recipients of the district's services pay compensation to the  [[Orig. Op. Page 8]] district.  By neither method does the district provide regular services to nonresidents without receiving anything in return.  Indeed, to do so would not "benefit" either the residents or territory lying within the fire district.

            Returning then to RCW 52.12.111, we do not believe it reasonably may be construed as conferring authority to provide regular services to nonresidents without receiving compensation in return, either before or after the services are rendered.  Such a reading would conflict with the overall legislative intent set forth in the fire district statutes.

 Question 3

             Your third question, repeated here for ease of reference, asks:

             May a fire protection district that withdraws an area from its boundaries pursuant to RCW 52.04.056, thus not extending its tax levy over the withdrawn area, provide free services to the untaxed area by "reannexing" it to the district pursuant to RCW 52.04.056?

 We answer this question in the negative.

             This question arises because of the interplay between those portions of RCW 52.04.056 that authorize a fire district to withdraw territory and those that authorize it to reannex previously withdrawn territory.  You have suggested that the statute might be construed as allowing a fire district to both "withdraw"  and "reannex" the same territory in the same calendar year, with the territory being exempt from the district's tax levy yet fully entitled to continue receiving free fire protection and emergency medical services from the district, with no interruption of service.  We conclude that the language of the statute, which must be given effect, forbids this interpretation.  See State v. Theilken, 102 Wn.2d 271, 275, 684 P.2d 709 (1984).

             RCW 52.04.056(1) authorizes the withdrawal of territory from a fire district following the passage of appropriate resolutions by the board of fire commissioners and either the city, town, or county council.  RCW 52.04.056(2) further provides:

             A withdrawal shall be effective at the end of the day on the thirty-first day of December in the year in which the resolutions are adopted, but for purposes of establishing boundaries for property tax purposes, the boundaries shall be established immediately upon the adoption of the second resolution.

              [[Orig. Op. Page 9]]

 The Legislature thus provided for the immediate establishment of new boundaries for property tax purposes only.4/            However, the statute plainly states that the withdrawal itself shall not become effective until December 31 of that year.

             Territory previously withdrawn from a fire district may be reannexed to the district in substantially the same manner.  The new boundaries for tax purposes shall be established immediately upon passage of the second reannexation resolution (i.e., city, town, or county council), but the reannexation itself shall not become effective until December 31 of that year.  RCW 52.04.056(3).5/

              Reading the statutory scheme as a whole, it simply is not possible for a fire district to both withdraw and reannex the same territory during the same year.  Since the reannexation provisions of RCW 52.04.056(3) apply only to "[a]n area that has been withdrawn from the boundaries of a fire protection district under this [statute]", and since a withdrawal of territory cannot become effective until the end of the day on December 31, any reannexation of previously withdrawn territory can be effected only during the next calendar year.

             There is, therefore, no statutory loophole under which a fire district may treat certain territory as "withdrawn" for tax purposes but "reannexed" for all others.  The plain language of the statute forbids such a result.

 Question 4

            Your fourth question, repeated here for ease of reference, asks:

             Where territory constituting only a portion of another taxing district is withdrawn from a fire protection  [[Orig. Op. Page 10]] district pursuant to RCW 52.04.056, and the boundaries of the fire protection district are reestablished after March 1 of a given year, will that year's tax levy be based on the reestablished boundaries?

 We answer this question in the negative.

             As previously noted, RCW 52.04.056 authorizes the withdrawal of fire district territory if inclusion of the area within the fire district would result in a reduction of the district's tax levy rate.  This situation could occur if the area in question overlapped with either the whole or a portion of another taxing district.  In either event, RCW 52.04.056 states that "for property tax purposes, the [new fire district] boundaries shall be established immediately upon the adoption of the second [withdrawal] resolution."

             What is the result if these new boundaries are established after March 1 of any given year?  Will that year's property tax levy be based on the newly established boundaries?  RCW 84.09.030 provides in part:

             For the purposes of property taxation and the levy of property taxes the boundaries of counties, cities and all other taxing districts shall be the established official boundaries of such districts existing on the first day of March of the year in which the levy is made. . . .

 However, RCW 84.09.035 creates an exception to the above rule:

             Notwithstanding the provisions of RCW 84.09.030, the boundaries of a . . . fire protection district, . . . that withdraws an area from its boundaries pursuant to . . . 52.04.056, . . .which area has boundaries that are coterminous with the boundaries of a taxing district, shall be established as of the first day of October in the year in which the area is withdrawn. (Emphasis added.)

             The question, then, is whether an area has "boundaries that are coterminous with the boundaries of a taxing district"  if it overlaps with only a portion, rather than the whole of the district.  The word "coterminous" is not defined in RCW 84.09.035, nor is its meaning set forth elsewhere in the relevant statutes.  We thus resort to the dictionary to ascertain the  [[Orig. Op. Page 11]] ordinary meaning of the word.  Brenner v. Leake, 46 Wn. App. 852, 854-55, 732 P.2d 1031 (1987).  Webster's Third New International Dictionary 516 (1981) defines "coterminous" as:

             1:         having the same or coincident boundaries: covering or involving the same area (the city of Washington and the District of Columbia are [coterminous]) 2: coincident or coextensive in range, scope, limit, time, or duration . . . identical with . . . .

 From this definition, we conclude that an area to be withdrawn from a fire protection district is "coterminous" with another taxing district only if it covers all of the same territory as the other district.  If the area in question overlaps with only a portion of another taxing district, the area may be withdrawn from the fire protection district pursuant to RCW 52.04.056, but it would not have boundaries that are "coterminous" with the boundaries of the taxing district for purposes of RCW 84.09.035.

             Thus, under RCW 84.09.030 and [84.09].035, if a fire district withdraws an area that overlaps with only a portion of another taxing district, the new boundaries will not affect the fire district's tax levy for a given year unless they are established by March 1 of that year.  If a fire district withdraws an area that includes the whole of another taxing district, however, the new boundaries will affect the fire district's tax levy for a given year as long as they are established by October 1 of that year.

 Question 5

             Your fifth question, repeated here for ease of reference, asks:

             Are the procedures in RCW 52.04.056, which govern the withdrawal and reannexation of territories to fire protection districts, subject to the boundary review board statutes set forth in chapter 36.93 RCW?

             This question requires us to reconcile two conflicting statutory schemes.  RCW 52.04.056, on the one hand, sets forth an expeditious procedure for withdrawing or reannexing fire district territory, which makes no reference to review by a boundary review board.  RCW 36.93.090, on the other hand, contains conflicting language.  To resolve this apparent conflict, we must construe the two statutes by applying rules of statutory construction, giving particular emphasis to the purposes of both the withdrawal/reannexation statutes and the boundary review board statutes.  We conclude that the Legislature did not intend the withdrawal and reannexation procedures in RCW 52.04.056 to be  [[Orig. Op. Page 12]] subject to the boundary review board statutes.  We therefore answer your fifth question in the negative.

             We turn first to RCW 52.04.056.  Two aspects of this statute are of particular importance here.  First, RCW 52.04.056 clearly sets forth the procedural requirements for withdrawing or reannexing fire district territory, and the municipal bodies that must approve such action.  The board of fire district commissioners and either the city, town, or county council for the affected area must approve appropriate resolutions.  In the case of reannexation, a petition for a referendum may also be filed.  No mention is made, however, of review by either a boundary review board or any other independent reviewing body.

             Moreover, RCW 52.04.056 sets forth specific timelines to ensure expeditious withdrawals or reannexations.  The statute makes a withdrawal or reannexation effective on December 31 in the year the resolutions are passed, and provides that the new boundaries for property tax purposes shall be established immediately upon adoption of the second resolution.  The only exception is if a valid referendum petition is filed following a reannexation proposal; in this case, RCW 52.04.056 states that "the effect of the resolutions shall be held in abeyance", a reannexation election shall be held within 45 days, and the reannexation shall be authorized if approved by a majority of the voters in the affected area.  Apart from this clearly delineated exception, it is apparent that the Legislature intended for withdrawals and reannexations under RCW 52.04.056 to be expeditious.

             With this in mind, we now examine the boundary review board statutes.  The Legislature has established a boundary review board for each class AA and class A county; other counties are authorized to establish such a board by resolution or petition.  RCW 36.93.030.  Boundary review boards have authority to review and then approve, modify, or deny several types of proposed actions affecting municipal boundaries.  See RCW 36.93.090.  However, the review process is potentially very lengthy.  First, the initiators of any proposed action subject to review must file a "notice of intention" with the boundary review board within 180 days of the proposal.  RCW 36.93.090.  During the next 45 days, the board's jurisdiction may be invoked if either a majority of the board, "any governmental unit affected", or resident petitioners of the affected area file a "request for review".  RCW 36.93.100.  Once review is duly requested, the board is allowed another 120 days in which to approve, deny, or modify the proposal.  RCW 36.93.100, [36.93].150.  If the board approves or modifies a proposal, the proposal is then "presented under the appropriate statute for approval of a public body, and, if required, a vote of the people."  RCW 36.93.150(5).

              [[Orig. Op. Page 13]]

             We now turn to the specific statutory language that apparently has triggered your question.  RCW 36.93.090 states in part:

             The [boundary review] board may review any such proposed actions pertaining to:

                         (1) The: (a) Creation, incorporation, or change in the boundary, other than a consolidation, of any city, town, or special purpose district . . . .

 Since a fire protection district is a "special purpose district", see RCW 36.93.020(2), this statute, if read literally and in isolation, would appear to provide for boundary review board review of any withdrawal or reannexation proposal.  However, this lengthy review process cannot be reconciled with the expeditious review process set forth in RCW 52.04.056.  Where two statutes dealing with the same subject matter are in apparent conflict, the more specific statute will control.  In re Estate of Little, 106 Wn.2d 269, 284, 721 P.2d 950 (1986).  Here, RCW 36.93.090 deals generally with the review of proposals to change municipal boundaries, while RCW 52.04.056 establishes a specific statutory scheme to effect the withdrawal or reannexation of fire district territory for tax-related purposes.  We thus give preference to RCW 52.04.056, and conclude that review by the boundary review board is not appropriate here.

             We trust the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

GREGORY J. TRAUTMAN
Assistant Attorney General