WA AGO 2018 No. 1 2018-01-09

Can a Washington mosquito control district charge state-owned property a special assessment for mosquito-control work?

Short answer: No. The AG concluded that a mosquito control district has no power to assess state property, because RCW 17.28.255 does not expressly include state-owned land and Washington courts require an express statutory authorization before state property can be hit with a special assessment.

Disclaimer: This is an official Washington State Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Washington attorney for advice on your specific situation.

Plain-English summary

Walla Walla County Prosecutor James Nagle asked Attorney General Bob Ferguson whether a mosquito control district can use the special-assessment power in RCW 17.28.255 to charge state-owned land within the district. The AG answered no.

Washington's special-purpose districts are funded in several ways. They can levy a regular property tax (RCW 17.28.100), pass an excess levy with voter approval (RCW 17.28.252), issue bonds (RCW 17.28.260), or impose a non-tax special assessment that is set in proportion to the benefit received by a particular parcel (RCW 17.28.255). The first three are property taxes, and Article VII, section 1 of the state constitution exempts public property from property taxation. The fourth, a special assessment, is not a tax; it is a charge for a specific local improvement.

The AG had previously concluded in AGO 2003 No. 9 that city-owned property could be subject to a mosquito-control district special assessment, because the assessment was not an ad valorem tax and the legislature had not expressly excluded city property. But that 2003 opinion flagged in a footnote that the rule for state-owned property was different. State property cannot be subject to a special assessment "unless clearly and expressly made so by constitution or statute." Rabel v. City of Seattle, 44 Wash. 482, 87 P. 520 (1906). That rule does not apply to other public-property owners; for them, an assessment authority that is broad enough is sufficient unless the legislature has expressly excluded them.

The legislature did create a path for assessing state-owned land. RCW 79.44.010 lets "assessing districts" levy assessments against state property. The defined list of assessing districts in RCW 79.44.003 includes cities, diking districts, drainage districts, port districts, irrigation districts, water-sewer districts, counties, and a catch-all for other municipal corporations or public agencies that have an assessment power that is "expressly made applicable to lands of the state." Mosquito control districts are not on the enumerated list, and RCW 17.28.255 does not contain the magic-words "applicable to lands of the state." So they fall outside the catch-all too.

The takeaway, in 2018: mosquito control districts could only assess state-owned property if the legislature added the magic-words clause to RCW 17.28.255, or added mosquito control districts to RCW 79.44.003 directly.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why can mosquito control districts assess city-owned property but not state-owned property?
A: Different default rules. Other public property (cities, school districts, etc.) is subject to assessment unless expressly excluded by the legislature. State property is the reverse: it is exempt unless the legislature expressly says so. The AG cited Rabel v. City of Seattle and In re Appeal of State for this asymmetry.

Q: Is a special assessment a tax?
A: Legally, no. A property tax is set as a percentage of property value (ad valorem). A special assessment is set in proportion to the benefit a particular parcel receives from the improvement. Constitutional limits on taxing public property do not automatically apply to special assessments, which is why the AG had to do a separate analysis under the assessment statutes.

Q: What is RCW 79.44 and why does it matter?
A: It is the statute that lets specific local entities ("assessing districts") levy assessments against state-owned land. The list in RCW 79.44.003 names seven specific district types and includes a catch-all for any "municipal corporation or public agency" whose assessment power is "expressly made applicable to lands of the state." The AG concluded that a mosquito control district was not in the named list and could not fit the catch-all because the mosquito-control-district statute did not contain that express clause.

Q: Could the legislature change this result?
A: Yes. The opinion itself suggests two paths: amend RCW 17.28.255 to expressly include state-owned property, or amend RCW 79.44.003 to add mosquito control districts to the list of assessing districts. Either change would resolve the gap.

Q: Did this opinion stop mosquito control districts from collecting from the state?
A: The opinion concluded they did not have that power in the first place; whether any district had been collecting and stopped is a separate question this opinion did not address.

Background and statutory framework

Mosquito control districts are special-purpose local governments created under RCW 17.28 to eliminate mosquitoes and mosquito breeding areas. Their funding comes from property taxes, excess levies, special assessments, and bonds. Public property is generally exempt from property taxation by Article VII, section 1 of the state constitution and by RCW 84.36.010(1). That left the special-assessment power in RCW 17.28.255 as the open question.

The Washington Supreme Court drew a distinction in two 1906 cases. In Rabel v. City of Seattle, the Court held that state property could not be subject to a special assessment without express constitutional or statutory authorization. In In re Extending Howard Avenue North, decided the same year, the Court held that other public property was subject to special assessment when the assessment statute was broad enough to cover it, unless expressly excluded. That divergent treatment carried forward into modern statutes: RCW 79.44 codifies the rule for state property by listing assessing districts that may reach state land, and conditioning the catch-all on assessment authority that is "expressly made applicable to lands of the state."

The mosquito-control-district assessment statute does not include that express applicability clause. The AG read RCW 79.44 strictly, declined to imply state-property authorization, and concluded that mosquito control districts were not assessing districts under RCW 79.44.003 and lacked authority under RCW 79.44.010.

Citations and references

Statutes:
- RCW 17.28 (mosquito control districts)
- RCW 79.44.003, .004, .010 (assessments on state-owned land)
- RCW 84.36.010(1) (public property tax exemption)

Constitutional provisions:
- Wash. Const. art. VII, § 1 (uniform taxation)

Cases:
- Rabel v. City of Seattle, 44 Wash. 482, 87 P. 520 (1906)
- City of Spokane v. Sec. Sav. Soc'y, 46 Wash. 150, 89 P. 466 (1907)
- In re Extending Howard Avenue North, 44 Wash. 62, 86 P. 1117 (1906)
- In re Appeal of State, 60 Wn.2d 380, 374 P.2d 171 (1962)

Prior AG opinions:
- AGO 2003 No. 9 (city-owned property and mosquito-control assessments)
- AGO 1972 No. 16 (state-owned property and special assessments)
- AGO 1959-60 No. 161 (state-owned property)
- AGO 1994 No. 24 (special assessments vs. ad valorem taxes)
- AGO 1984 No. 10 (nature of municipal corporations)

Source

Landing page: https://www.atg.wa.gov/ago-opinions/authority-mosquito-control-districts-assess-state-owned-property

Original opinion text

Attorney General Bob Ferguson

DISTRICTS—ASSESSMENTS—PROPERTY—Authority Of Mosquito Control Districts To Assess State Owned Property

Mosquito control districts lack the authority to levy assessments against property owned by the state.

January 9, 2018

The Honorable James L. Nagle

Walla Walla County Prosecuting Attorney

240 West Alder Suite 201

Walla Walla, WA 99362-2807

Cite As:

AGO 2018 No.1

Dear Prosecutor Nagle:

By letter previously acknowledged, you have requested our opinion on the following question:

May mosquito control districts levy assessments against state owned property within their respective districts pursuant to RCW 17.28.255?

BRIEF ANSWER

No. Mosquito control districts do not have the statutory authority to levy an assessment against state owned property because state owned property is not expressly identified in RCW 17.28.255.

ANALYSIS

Mosquito control districts are special purpose local government bodies created to eliminate mosquitoes and mosquito breeding areas. RCW 17.28.160-.185. The districts may be funded through a variety of sources, including an annual property tax, non-tax special assessments against property within the district, and by issuing general obligation bonds. See RCW 17.28.100 (authorizing general property tax levy), .252 (authorizing general property tax excess levy), .255 (authorizing special assessment), .260 (authorizing general obligation bonds). You have asked whether the authority granted to mosquito control districts under RCW 17.28.255 permits a district to assess state owned property within their districts.

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We previously addressed whether property owned by a city could be subject to a mosquito control district special assessment under RCW 17.28.255. AGO 2003 No. 9. We determined city property could be subject to such assessments because: (1) the assessment is a special assessment rather than an ad valorem tax; and (2) the legislature had not expressly excluded city owned property from such assessments. AGO 2003 No. 9. Enclosed is a copy of this opinion for your reference.

In a footnote to our 2003 opinion, we recognized our analysis may be different for state owned property. The footnote indicates:

As [AGO 1972 No. 16] points out, there is a different rule for state-owned property than for property owned by local governments. The courts have stated that state property is not subject to special assessment, unless the Legislature expressly makes it so. City of Spokane v. Sec. Sav. Soc'y, 46 Wash. 150, 89 Pac. 466 (1907) and Rabel v. City of Seattle, 44 Wash. 482, 87 Pac. 520 (1906). Accord AGO 1959-60 No. 161.

AGO 2003 No. 9, at 3 n.2. You have asked the follow-up question anticipated in this footnote.

The first step in answering your question is to determine whether RCW 17.28.255 authorizes a non-tax special assessment or a general ad valorem tax. It is important to distinguish between these two funding sources because publicly owned property, including state property, is constitutionally and statutorily exempt from ad valorem taxes. Const. art. VII, § 1; RCW 84.36.010(1).[1] We have previously concluded RCW 17.28.255 authorizes special assessments—not general taxes—because the amount that may be assessed under that statute is imposed in proportion to the benefit received by the property, rather than based on "the value of the property" in question. AGO 2003 No. 9; see also AGO 1994 No. 24. We see no reason to depart from our previous conclusion.

The next step is to determine under what circumstances state owned property can be subject to special assessments. As recognized in footnote two to our 2003 opinion, the Washington Supreme Court addressed this question early in the twentieth century. In Rabel v. City of Seattle, 44 Wash. 482, 483, 87 P. 520 (1906), the Court determined state owned property could not be subject to a special assessment "unless clearly and expressly made so by constitution or statute." In contrast, other publicly owned property may be subject to a special assessment absent an express exclusion of public property as long as the statutory authority for the assessment is broad enough to include land that might be publicly owned. In re Extending Howard Avenue North, 44 Wash. 62, 67, 86 P. 1117 (1906).

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Based on these early cases, the rule for subjecting state owned property to a special assessment is different than the rule for other publicly owned property. For state owned property, there must be a constitutional or statutory provision explicitly including state property and the property must be specially benefitted by the improvements. In re Appeal of State, 60 Wn.2d 380, 381, 374 P.2d 171 (1962); AGO 1972 No. 16; AGO 59-60 No. 161. In contrast, other publicly owned property is subject to assessment as long as it is not expressly excluded by statute and the property is specially benefitted by the improvement. AGO 2003 No. 9.

The legislature authorized certain special assessments against state owned property in RCW 79.44.010. This statute permits assessing districts to levy assessments against state owned property. RCW 79.44.010. The term "assessing district" is defined as:

(1) Incorporated cities and towns;

(2) Diking districts;

(3) Drainage districts;

(4) Port districts;

(5) Irrigation districts;

(6) Water-sewer districts;

(7) Counties; and

(8) Any municipal corporation or public agency having power to levy local improvement or other assessments, rates, or charges which by statute are expressly made applicable to lands of the state.

RCW 79.44.003. Similarly, an "assessment" for purposes of RCW 79.44.010 is "any assessment, rate or charge levied . . . by any assessment district as defined in RCW 79.44.003, and which assessments, rates or charges by statute are expressly made applicable to lands of the state." RCW 79.44.004.

Mosquito control districts are municipal corporations or, at minimum, public agencies. See AGO 1984 No. 10, at 3-4 (discussing the nature of municipal corporations and quasi-municipal corporations). But they are not specifically identified in RCW 79.44.003(1)-(7). Thus, in order for mosquito control districts to fit within the definition of an assessing district under RCW 79.44.003(8), the statutes authorizing mosquito control districts to assess land must expressly provide such power is "applicable to lands of the state." RCW 79.44.003(8). RCW 17.28.255 does not contain that express legislative authorization. Thus, under the plain

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language of the statute, mosquito control districts are not "assessing districts" and do not have the power to "levy assessments against state owned property" under RCW 79.44.010.

We therefore conclude the laws governing mosquito control districts do not expressly authorize the assessment of state owned property. In the absence of that express authority, we must answer the question you presented in the negative. Mosquito control districts do not have the authority to levy assessments against state owned property.

We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON

Attorney General

ANNIKA SCHAROSCH

Assistant Attorney General

wros

enclosure

[1] For this reason, the general property tax authorized under RCW 17.28.100, and the excess property tax levy authorized under RCW 17.28.252, do not apply to state owned property, or to property of the United States, counties, school districts, and other municipal corporations. Const. art. VII, § 1.