Interlake Sporting Ass'n v. Washington State Boundary Review Board

Owens, J.

(dissenting) — I dissent. Contrary to the claims of petitioners Gerald K. Hirschler and Interlake Sporting Association, Inc., the decision of the Washington State Boundary Review Board for King County (the Board) to increase the territory of the city of Redmond’s proposed annexation was not “[i]n excess of the statutory authority or jurisdiction of the board,” “[m]ade upon unlawful procedure,” or “[a]ffected by other error of law.” RCW 36.93-.160(6)(b)-(d).

¶53 The annexation statutes in chapter 35A.14 RCW govern the city of Redmond (the City), a noncharter op*562tional municipal code city. RCW 35A. 14.001 explicitly provides that any annexation “[ajctions taken under chapter 35A. 14 RCW may be subject to potential review by a boundary review board under chapter 36.93 RCW.” When a “governmental unit affected” by the proposed annexation invokes the board’s review (as Kang County did in this case), the board must review the proposed action and “approve, disapprove, or modify” it. RCW 36.93.100(2), .100 (emphasis added). The legislature expressly empowered the board “to modify the proposal by adjusting boundaries to add or delete territory.” RCW 36.93.150(2) (emphasis added). The word “modify” means “change” or “alter,” the word “adjust” means “rectify” or “bring to a more satisfactory state,”5 and the word “add” means “add.” In plainest terms, the legislature authorized the board to change the boundaries of a city’s proposed annexation by adding territory in order to create a more satisfactory territory for annexation. Indeed, the legislature set forth nine objectives to guide the board’s creation of an optimally satisfactory annexation area, and it authorized the board to add territory if the annexation as originally proposed was found to be “inconsistent with” even one of the nine objectives in RCW 36.93.180. See RCW 36.93.150. In the present case, the Board concluded that the annexation proposal failed to satisfy any of the objectives of RCW 36.93.180 and that annexation of the entire Rose Hill neighborhood was necessary to meet the legislature’s statutorily defined requirements.

¶54 The majority claims that the Board added too much territory, but the legislature imposed no mathematical limitation on a board’s authority to add to a city’s proposed annexation territory. Had the legislature wanted to limit in some mathematical way a board’s discretionary application of the nine objectives in RCW 36.93.180, the legislature certainly knew how to do so. Immediately following the legislature’s general authorization of the board to add *563annexation territory, the legislature expressly limited the board’s authority to add to a town’s proposed annexation territory:

However, any proposal for annexation of territory to a town shall be subject to RCW 35.21.010 and the board shall not add additional territory, the amount of which is greater than that included in the original proposal.

RCW 36.93.150(2) (emphasis added). Thus, with respect to a town’s annexation of territory, the legislature limited the board’s power of addition to doubling the size of the proposed annexation area, while in contrast the legislature placed no such limitation on the board’s authority to augment a city’s proposed annexation area to satisfy the statutorily prescribed objectives. Notably, although the majority contends that in the present case the Board added too much, the majority can point to no legislative enactment that would tell a board how much is too much.

¶55 An additional provision in RCW 36.93.150 likewise underscores that the legislature in no way limited the board’s authority to add territory to a city’s originally proposed annexation area:

A proposal that has been modified shall be presented under the appropriate statute for approval of a public body and if required, a vote of the people. If a proposal, other than that for a city, town, or special purpose district annexation, after modification does not contain enough signatures of persons within the modified area, as are required by law, then the initiating party, parties or governmental unit has thirty days after the modification decision to secure enough signatures to satisfy the legal requirement. If the signatures cannot be secured then the proposal may be submitted to a vote of the people, as required by law.

RCW 36.93.150 (emphasis added). Here, the legislature put to rest any notion that, following the board’s addition or deletion of territory, a city would have to circulate a new annexation petition and secure the signatures of those owning at least 60 percent of the assessed value of the newly defined annexation area. As the legislature un*564equivocally stated, the board’s “addition or deletion of property . . . shall not invalidate a petition which had previously satisfied the sufficiency of signature provisions of RCW 35.13.130 or 35A.14.120.” Id. The statute makes it apparent that the legislature considered whether the board’s addition of property to a city’s annexation should require a new petition, and the statute also shows that the legislature deliberately chose not to impose such a requirement on a city’s annexation process. In sum, I see no way that the legislature could have possibly made it any clearer (1) that the board’s authority flows directly from the provisions of chapter 36.93 RCW and (2) that its authority is not limited by the annexation statutes in chapter 3 5A. 14 RCW.

¶56 The majority makes consent the linchpin of its analysis, but contrary to the majority’s apparent belief, annexation is not contingent upon the consent of every citizen — or even a majority of citizens — affected by the petition method of annexation. As this court has acknowledged, the legislature has the power to “ ‘annex or authorize the annexation of contiguous or other territory without the consent and even against the remonstrance of the majority of persons in either the annexed territory or the corporation to which it is being joined’ “The power is entirely that of the legislature, which may delegate to the cities.” Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 813-14, 83 P.3d 419 (2004) (quoting State ex rel. Bowen v. Kruegel, 67 Wn.2d 673, 680, 409 P.2d 458 (1965)). Likewise erroneous is the majority’s claim that the City lacks authority to subject property owners in the modified annexation territory to the City’s preexisting indebtedness and zoning. As noted above, the legislature has specifically declared that the original annexation petition (or 60 percent petition) — which by statute addresses the issues of preexisting indebtedness and zoning — supports the annexation proposal as modified by the board. See RCW 36.93.150; RCW 35A.14.120. A city’s decisions as to preexisting debt and zoning are not subject to board review (which focuses on the factors in RCW 36.93.180), nor are such decisions contin*565gent on the consent of a majority of taxpayers. See RCW 35A.14.120.

¶57 Finally I believe the majority opinion could be much clearer in two respects. First, in its role as super-legislature, the majority should clarify its rewrite of the real legislature’s statute. My understanding is that the majority has added five words to the first sentence of RCW 36.93-.150(2): “The board . . . shall. . . modify the proposal by adjusting boundaries to add or delete territory but not too much territory.” It would also seem that the majority has necessarily added the following definition to RCW 36.93-.020: “ ‘Too much territory’ means more territory than we would have added.” Second, in its role as super-boundary review board, the majority should explain the result of its negation of the real board’s authority. In light of the Board’s unchallenged finding that the proposed annexation satisfied none of the statutory criteria of RCW 36.93.180, the proposed annexation could not be approved. If, as the majority concludes, the Board lacked the authority to add territory, the only possible result is that the majority is disapproving the City’s original annexation proposal. But given the vagueness of the majority opinion, I am uncertain whether the majority believes it is leaving the original annexation proposal in play.

¶58 Rather than rewriting the governing statutes and leaving the City without an annexation proposal, I would accept the legislature’s plain language and would conclude, as the superior court did in its de novo review, that the Board properly exercised its statutorily defined authority to modify the City’s proposed annexation.

Madsen, Bridge, and Fairhurst, JJ., concur with Owens, J.

Reconsideration denied February 5, 2007.

See Webster’s Third New International Dictionary 1452, 27 (2002).