POWERS OF COUNTY COMMISSIONERS TO CHANGE BOUNDARIES IN PROPOSED P.U.D. LESS THAN COUNTY-WIDE

POWERS OF COUNTY COMMISSIONERS TO CHANGE BOUNDARIES IN PROPOSED P.U.D. LESS THAN COUNTY-WIDE

The power of the county commissioners to change and fix the boundary of a proposed P.U.D. which is less than county-wide is limited to a proposed P.U.D. which has embraced lands unjustly or improperly and lands which will not be benefited by the inclusion, and the commissioners have no power to arbitrarily restrict the proposed area so as to in effect leave no area at all.

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                                                              September 29, 1950

Mr. Nat W. Washington
136 ‑ 1st Avenue N.W.
Ephrata, Washington                                                                                                              Cite as:  AGO 49-51 No. 351

Dear Sir:

            In your telephone call on the 28th last you requested an opinion interpreting Rem. Rev. Stat. § 11607, chapter 3, Laws of 1931, in particular, whether under the above section the county commissioners have power to arbitrarily fix the boundaries of a proposed public utility district less than county-wide so as to reduce the proposed area to in effect leave no area at all.

            Our conclusions may be summarized as follows:

            (1) The power of the county commissioners to change and fix the boundary of a proposed public utility district which is less than county-wide is limited to a proposed public utility district which has embraced lands unjustly or improperly and lands which will not be benefited by the inclusion.

            (2) The county commissioners do not have power to arbitrarily restrict the area so as to in effect leave no area at all.

                                                                     ANALYSIS

            Rem. Rev. Stat. § 11607 provides in part as follows:

             [[Orig. Op. Page 2]]

            "* * * if upon the final hearing the board of county commissioners shall find that any lands have been unjustly or improperly included within the proposed public utility district and will not be benefited by inclusion therein, the said board shall change and fix the boundary lines in such manner as it shall deem reasonable and just and conducive to the public welfare and convenience, and make and enter an order establishing and defining the boundary lines of the proposed public utility district:  * * *"

            Our search has not uncovered any case precisely setting down the extent of the powers of the county commissioners in fixing the boundaries of a proposed public utility district less than county-wide.

            However, the purpose of having a hearing on a proposed public utility district of an area less than a county is clearly expressed in State ex rel. Panesko v. P.U.D. No. 1, 9 Wn. (2d) 581, 115 P. (2d) 692, where the court stated:

            "* * * Manifestly, its purpose is to enable the county commissioners to fix suitable boundary lines after determining whether 'any lands have been unjustly or improperly included' and 'will not be benefited by inclusion.'  * * *"

            Thus, this case and a plain reading of the statute show that the power of the county commissioners to change and fix the boundary proposed is dependent upon their first finding that lands have been unjustly or improperly included and will not be benefited by the inclusion.  The act does not give commissioners the power to originally fix the boundaries as this is expressly given to the petitioners.  The commissioners' powers are exercisable only after they have first found that lands have been improperly and unjustly included and will not be benefited by the inclusion.

            The question then narrows down to what would amount to an unjust or improper and non-beneficial [[nonbeneficial]]inclusion.

            InPublic Utility Dist. No. 1 v. Superior Court, 199 Wash. 146, 90 P. (2d) 737, the court, after stating that property which will not be benefited by inclusion in the proposed district shall be excluded, cited Rem. Rev. Stat. § 11616, and then stated on page 158:

             [[Orig. Op. Page 3]]

            "From this section, it clearly appears that it is not the intent of the law that a utility district may, within the boundary of a municipal corporation, duplicate utilities already owned or operated by the municipality, and assess the property within the boundaries of such municipal corporation for such duplication.  * * *"

            Thus, if the proposed district embraced a municipal corporation or part thereof which owned and operated all the utilities authorized, the proposed district as to that portion would be but a duplication, and it would seem the commissioners could find that the portion of the proposed area thus included would not be benefited by the inclusion, and should be excluded.

            It would further appear that if the commissioners' change of the proposed boundaries is based on the fact that the proposed area includes lands which would not be benefited because of duplication, the commissioners should be required to make a finding that the municipal corporation embraced, owns or operates all of its authorized utilities.

            Another instance in which the county commissioners could find that lands have been unjustly or improperly included is where the proposed area did not follow existing precinct boundaries but cut into or included a part or parts of other voting precincts.  Rem. Rev. Stat. 11607 also provides that where a proposed public utility district is less than the entire county, the boundaries shall follow existing precinct boundaries and shall not divide any voting precinct.

            If the proposed public utility district fits any of the above discussed circumstances (and possibly other situations not specifically herein mentioned), it is our opinion that the county commissioners then have the power to change the proposed boundaries, but only in such a manner as shall be reasonable and conducive to public welfare.  Our statute, Rem. Rev. Stat. § 11607, supra, gives the commissioners only the power to "change and fix the boundary * * * and enter an order establishing and defining the boundary lines of the proposed public utility district."  This language, in our opinion, negatives an interpretation which would give the commissioners power to refuse arbitrarily to establish any area.  The words "change and fix" cannot, in our opinion, be construed to mean "eliminate" or "refuse" or "dismiss," but rather the board, upon making certain findings as discussed heretofore, may alter the proposed boundaries to embrace lands which under the statute would be just, proper and beneficial.

             [[Orig. Op. Page 4]]

            Since we are not familiar with the area proposed nor informed of the facts surrounding this proposed public utility district, we cannot say that there may not be other facts that would indicate this proposed public utility district would be unjust, improper or non-beneficial [[nonbeneficial]]; but on the general proposition it is our opinion that the county commissioners have power only to alter and substitute the proposed boundaries and then only after a finding that the proposed boundaries embrace lands which are unjustly and improperly included and not benefited by the proposed inclusion, and they do not have power to arbitrarily restrict the area so as to in effect leave no area at all.

Very truly yours,

SMITH TROY
Attorney General

ROBERT L. SIMPSON
Assistant Attorney General