Opinion Information Sheet

			

        IN THE SUPREME COURT OF THE STATE OF WASHINGTON

JAMES R. CARY, MARY ALICE CARY, )
JOHN E. DIEHL, and WILLIAM D. FOX, )
SR.,                                        )       No. 83937-9
                                            )
                      Petitioners,          )
                                            )
       v.                                   )       En Banc
                                            )
MASON COUNTY and MASON                      )
CONSERVATION DISTRICT,                      )
                                            )
                      Respondents.          )
________________________________)                   Filed February 16, 2012

       ALEXANDER, J.* -- Four Mason County residents brought suit in Mason County 

Superior Court challenging  the validity of an  ordinance, which             levies  a special 

assessment on nonforest lands within the Mason Conservation District.  The superior 

court  ruled for the residents, concluding that the county ordinance                     is  an 

unconstitutional tax.  The Court of Appeals reversed that decision.  We granted review 

and now reverse the Court of Appeals, holding that the ordinance is invalid on statutory 

grounds.

                                                I

       The legislature has authorized counties to impose "special assessments" to fund 

       *Justice Gerry L. Alexander is serving as a justice pro tempore of the Supreme 
Court pursuant to Washington Constitution article IV, section 2(a). 

No. 83937-9

the activities of conservation districts, declaring      that  "[a]ctivities and programs to 

conserve natural resources, including soil and water, are . . . of special benefit to 

lands."  RCW 89.08.400(1).  The assessment rate can be stated either as a uniform 

rate per acre or a flat rate per parcel plus a uniform rate per acre.  RCW 89.08.400(3).  

The maximum rate per acre may not exceed $0.10, and the maximum rate per parcel 

may not exceed $5.00, except in a county with a population of more 1,500,000 (i.e., 

King County), where it may not exceed $10.00.

       In 2002, the Mason Conservation District (District) asked the Mason County 

Board of Commissioners (Board) to levy a special assessment of $5.00 per parcel and 

$0.07 per acre to "create a fund dedicated to addressing water resource protection 

issues within Mason County."  Clerk's Papers (CP) at 59.  The District proposed 

allocating a portion of the assessment revenue to the Mason County Department of 

Health Services (Department) in order to fund the County's threatened area response 

program, identify sources of pollution, and provide matching funds for future grant 

opportunities.  The District also proposed to use its share of the revenue to provide 

technical assistance to property owners regarding water pollution caused by animal 

waste, pesticides, and fertilizers.

       The Board      thereafter   held a public hearing at which the Department 

recommended that the Board approve the proposed assessment, but eliminate the 

$0.07 per acre rate in view of the high administrative costs associated with its 
collection.1  The Board agreed with the recommendations and adopted an ordinance,

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No. 83937-9

which eliminated the per acre rate and levied a "five-dollar flat rate" on all nonforest 

lands in the County.  Id. at 65; see Mason County Ordinance 121-02 (Ordinance).  The 

Ordinance was based on the Board's findings of fact, including the finding that "the 

special assessments to be imposed will not exceed the special benefit the land 

receives or will receive from activities funded by the assessment."  CP at 65.  

       In 2003, pursuant to RCW 89.08.220(4), the District entered into an interlocal 

agreement with Mason County, clarifying the nature of the services to be provided with 

the assessment funds.  According to the  agreement,  "[t]he  County manages water 

resources by and near affected assessed parcels, monitors surface and groundwater 

by and near affected assessed parcels and investigates complaints," while "[t]he 

District provides technical assistance and education to assessed property owners in 

managing their property to protect natural resources in a non-regulatory manner."  CP 

at 102.  The agreement also states that "[n]either the County nor the District may use 

assessment funds to directly benefit citizens who are not assessed property owners."  

Id.  at 103.  The agreement  also  enumerated           the "special benefits" provided to 

nonforested parcels with assessment funds, including water quality workshops, dye 

testing of septic systems, ambient water quality monitoring, restoration of broken sewer 

or water lines, remediation of contaminated soil, and matching funds for activities and 

programs to support soil and water conservation.          The County began collecting the 

       1According to the county treasurer, the $0.07 per acre charge would have 
brought in approximately $8,494, but would have cost the treasurer $1,344 each year to 
perform the additional billings, $400 to $600 to reprint tax statements, and $8,000 to 
$10,000 to reprogram the computer to take the $0.07 per acre into account.  CP at 63.  

                                               3 

No. 83937-9

assessment in 2003.  By 2007, it had received assessments totaling $1,112,640.68.  

       In March 2003, Mason County residents James Cary, Mary Alice Cary, John 

Diehl, and William Fox Sr. (Petitioners) filed this lawsuit in Mason County Superior 

Court.  In it, they sought a declaratory ruling that the Ordinance was invalid on statutory 

grounds and an unconstitutional property tax.  The superior court dismissed their suit 

as untimely, but the Court of Appeals reversed.  Cary v. Mason County, 132 Wn. App. 

495, 132 P.3d 157 (2006), review denied, 159 Wn.2d 1005 (2007).  On remand, the 

Petitioners and the District each moved for summary judgment.  The trial court granted 

the Petitioners' motion, concluding that the Ordinance is an unconstitutional tax under 

Covell v. City of Seattle, 127 Wn.2d 874, 905 P.2d 324 (1995), and that it violates RCW 

89.08.400(3) in assessing a per parcel rate without a per acre rate.  The Court of 

Appeals reversed that decision, holding that the Ordinance is a valid regulatory fee 

under Covell and that RCW 89.08.400(3) does not require a per acre rate in addition to 

a per parcel rate.

       The Petitioners then sought review here, and we granted their petition.  The 

Washington State Conservation Commission, the Washington Association of 

Conservation Districts, the Evergreen Freedom Foundation, the Rental Housing 

Association of Puget Sound, and King County all submitted amicus briefs.

                                               II

       On appeal from a summary judgment order, an appellate court engages in the 

same inquiry as the trial court.  Okeson v. City of Seattle, 150 Wn.2d 540, 548, 78 P.3d 

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No. 83937-9

1279 (2003).  The issues before us pertain to constitutional limitations and statutory 

authority and are issues of law to be determined de novo by this court.  Id. at 548-49.

                                               III

   A. Are the Petitioners  prohibited by RCW 89.08.400(2)  from challenging Mason 
       County's special assessment ordinance?

       As a preliminary matter, the District asserts that the validity of the Ordinance is 

not subject to judicial review.  In support of this position, the District cites RCW 

89.08.400(2), which provides that the "findings of the county legislative authority" that 

the assessments are in the public interest and will not exceed the benefits of the 

district's conservation programs "shall be final and conclusive."  The District contends 

that the legislature has limited landowners to the remedy                 set forth in RCW 

89.08.400(5).  That statute provides that after the assessment has been approved, if at 

least 20 percent of the owners of land subject to the assessment file a petition with the 

county legislative authority objecting to the assessment, the assessment may not be 

collected in the following year.  

       The District misunderstands the import of RCW 89.08.400(2).  While that statute 

does make certain of the county's findings final and conclusive, it does not preclude a 

judicial challenge to the constitutionality of special assessments or their compliance

with statutory mandates.  Cf. Heavens v. King County Rural Library Dist., 66 Wn.2d 

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No. 83937-9

558, 562, 404 P.2d 453 (1965) (procedure provided by statute for taxpayers to 

challenge their share of the cost of the local improvement would have offered an 

"adequate remedy" if the taxpayers had challenged the assessment as excessive, but 

they were challenging the "constitutionality of any special assessment for the purpose 

stated").  Even if the legislature had intended such a result, it may not deprive this court 

of its obligation to review the statutory or constitutional validity of a special assessment.  

See Scott Paper Co. v. City of Anacortes, 90 Wn.2d 19, 33, 578 P.2d 1292 (1978) (

"The construction of the constitution is a judicial function.  As such, it is exclusively the 

function of the courts under Const. art. 4, § 1."); State ex rel. O'Connell v. Slavin, 75 

Wn.2d 554, 557, 452 P.2d 943 (1969) ("The construction and interpretation of statutes 

and of provisions of the constitution is a judicial function."); Blanchard v. Golden Age 

Brewing Co., 188 Wash. 396, 415, 63 P.2d 397 (1936) ("Any legislation, . . . the 

purpose or effect of which is to divest, in whole or in part, a constitutional court of its 

constitutional powers, is void as being an encroachment by the legislative department 

upon the judicial department.").        In sum, RCW        89.08.400(2)  does not bar the 

Petitioners' challenge to the Ordinance.

   B. Does Mason County's Ordinance violate RCW 89.08.400(3)?

       The Petitioners contend here, as they did below, that the Ordinance is invalid on 

both  statutory and constitutional grounds.  We have said that  "[a] reviewing court 

should not pass on constitutional issues unless absolutely necessary to the 

determination of the case."  State v. Hall, 95 Wn.2d 536, 539, 627 P.2d 101 (1981).  

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No. 83937-9

We begin, therefore, with an analysis of the Petitioners' statutory challenge.  As we 

have already observed, the District initially asked the Board to assess properties at 

$5.00 per parcel and $0.07 per acre.  The Board, however, eliminated the per acre rate 

in order to avoid the administrative costs associated with its collection and simply 

imposed a flat per parcel assessment of $5.00.  The Petitioners contend that the 

Board's action contradicted the plain text of RCW 89.08.400(3), which provides, in 

pertinent part:

       A system of assessments shall classify lands in the conservation district 
       into suitable classifications according to benefits conferred or to be 
       conferred by the activities of the conservation district, determine an 
       annual per acre rate of assessment for each classification of land, and 
       indicate the total amount of special assessments proposed to be obtained 
       from each classification of lands.  Lands deemed not to receive benefit 
       from  the  activities of the conservation district shall be placed into a 
       separate classification and shall not be subject to the special 
       assessments.  An annual assessment rate shall be stated as either 
       uniform annual per acre amount, or an annual flat rate per parcel plus a 
       uniform annual rate per acre amount, for each classification of land.

(Emphasis added.)  The Petitioners read the last sentence of the quoted portion of the 

statute as mandating a positive rate per acre "plus" a flat rate per parcel.  

       The District, noting that the statute says "shall be stated as" (as opposed to 

simply "shall be"), responds that nothing in this provision actually prohibits a county's 

legislative authority from setting the      rate per acre at      $0.00, thereby effectively 

eliminating it.  In the District's view, a county is free to impose only a flat rate per 

parcel, so long as the rate per acre is "stated as" $0.00.  According to the District, the 

only substantive requirements are that the per acre rate may not exceed $0.10 and the 

                                               7 

No. 83937-9

per parcel rate may not exceed $5.00 (except in King County).  The Court of Appeals 

agreed with this reasoning, pointing out that RCW 89.08.400(3) sets only maximum 

rates, not minimum rates.  Cary v. Mason County, 152 Wn. App. 959, 969, 219 P.3d 

952 (2009), review granted, 168 Wn.2d 1026, 230 P.3d 1060 (2010).

       We are not persuaded by the District's interpretation.  RCW 89.08.400(3) directs 

counties to "classify lands in the conservation district         into  suitable  classifications

according to benefits conferred . . . by the activities of the conservation district" and to 

"determine an annual per acre rate of assessment for each classification of land."  

(Emphasis added.)  Since lands are classified "according to benefits conferred," a per

acre rate of $0.00 implies that a District's activities confer no benefit on the land in that 

classification.  Thus, a classification with a per acre rate of $0.00 would not be a 

"suitable" classification for lands that do benefit from a District's activities.

       We recognize that the per acre rate for one classification must be $0.00.  RCW 

89.08.400(3) provides that "[l]ands deemed not to receive benefit from the activities of 

the conservation district shall be placed into a separate classification and shall not be 

subject to special assessments."  (Emphasis added.)  Since the lands that do not 

benefit from a District's activities are not subject to the assessment, the per acre rate 

for that classification can only be $0.00.  The fact that the per acre rate for that 

separate classification is $0.00, however, does not imply that the per acre rate for the 

classifications subject to the assessment may  also be $0.00.  On the contrary, the 

implication is that land subject to the assessment should be assigned a positive per 

                                               8 

No. 83937-9

acre rate corresponding to the "benefits conferred."  

       The District does not appear to understand the purpose of the per acre rate 

requirement.  The statute directs counties to "determine an annual per acre rate of 

assessment for each classification of land" in order to apportion the burden of the 

special assessment "according to benefits conferred" by the District's activities.  RCW 

89.08.400(3); cf. City of Seattle v. Rogers Clothing for Men, Inc., 114 Wn.2d 213, 219-

20, 787 P.2d 39 (1990) (special assessments imposed on businesses based on the 

square footage of business space and the nature of its use).  For that reason, the 

Washington State Conservation Commission promulgated a rule in 2007, WAC 135-

100-080, providing that "[t]he uniform per-acre amount must be greater than zero cents 
per acre."2  The District's interpretation eliminates the proportionality that the legislature 

sought to achieve between the amount of the special assessment and the benefits 
conferred by the district's activities.3   We conclude, therefore, that the Ordinance is 

       2In an amicus brief submitted at the Court of Appeals by the attorney general on 
behalf of the Washington State Conservation Commission, the commission took the 
position that the statute requires a positive per acre rate and asked the court to 
invalidate the assessment on that basis.  Amicus Curiae Br.                  of Wash. State 
Conservation Comm'n at 6-7.  While noting the existence of WAC 135-100-080, the 
commission now urges this court to uphold the assessment, implicitly repudiating its 
earlier position.

       3Notably, the District's interpretation would frustrate the assessment of forest 
lands.  RCW 89.08.400(3) provides that forest lands "used solely for the planting, 
growing, or harvesting of trees may be subject to special assessments" if they benefit 
from the conservation district's activities, but "the per acre rate of special assessment 
on benefited forest lands shall not exceed one-tenth of the weighted average per acre 
assessment on all other lands within the conservation district . . . subject to its special 
assessments."  (Emphasis added.)  Under the Mason County Ordinance, the "weighted 
average per acre assessment on all other lands" is $0.00.  

                                               9 

No. 83937-9

invalid.

   C.   Petitioners are entitled to the recovery of money paid under protest

       After finding the Ordinance invalid, the trial court entered an order declaring that 
persons who paid the assessment "under protest" were "entitled to a refund."4  CP at 13 

(citing RCW 84.68.020).  We affirm the trial's court order.  Corwin Inv. Co. v. White, 

166 Wash. 195, 197, 6 P.2d 607 (1932) ("Void taxes voluntarily paid cannot be 

recovered back.  Taxes which are void, but which have been paid under protest, may 

be recovered back." (citations omitted)).

                                          Conclusion

       We hold that Mason County Ordinance 121-02 violates RCW 89.08.400(3) in 

assessing only per parcel rate.  Our resolution makes it unnecessary to consider the 

Petitioners' remaining statutory and constitutional challenges.  We, therefore, express 

no opinion on the constitutionality of funding the activities of conservation districts 

through special assessments.  The decision of the Court of Appeals is reversed.

AUTHOR:

        Gerry L. Alexander, Justice Pro 
        Tem.

       4Petitioner Diehl asserts in his affidavit that he submitted a written protest to the 
Mason County treasurer setting forth the grounds on which the Ordinance was claimed 
to be invalid and renewed his protest with subsequent property tax payments.  CP at 
96.

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No. 83937-9

WE CONCUR:

        Chief Justice Barbara A. Madsen                  Justice James M. Johnson

        Justice Charles W. Johnson                       Justice Debra L. Stephens

        Justice Tom Chambers                             Justice Charles K. Wiggins

        Justice Susan Owens

        Justice Mary E. Fairhurst

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