A group of residents of Klickitat County Fire Protection District No. 3 has started a lawsuit in Superior Court challenging Fire District No. 3 Commissioners’ decision to make the district’s property tax levy permanent at 92 cents per $1,000 of assessed valuation.
The petition for judicial review was filed with the County Clerk’s Office on Dec. 2 by the Committee for Fair Taxation from Klickitat County Fire Protection District No. 3. The petition for a declaratory judgment names Fire District No. 3, Klickitat County, and the County Prosecuting Attorney, Auditor, Assessor, and Treasurer as respondents. It asks the court to direct Fire District No. 3 and county officials to terminate the levy lid lift after six years (the end of 2013) “as approved by Fire District voters…” and roll the rate back to its 2007 level, which was 60 cents per $1,000. It also seeks to void all non-public decisions and actions taken by Fire District No. 3 Commissioners and other respondents to make the levy lid lift permanent.
The committee is registered with the state Public Disclosure Commission as a political committee (as of Nov. 18) and lists James Hulbert of White Salmon, a former Fire District No. 3 commissioner, as its chairman and Monica R. Lash of White Salmon as its secretary-treasurer. Its attorney in the lawsuit is Lance L. Stryker of White Salmon. All three live within White Salmon’s unincorporated urban growth area, which is part of Fire District No. 3, and were involved in an effort in 2011 to withdraw their area from the fire district.
Stryker told The Enterprise via e-mail Monday that the committee is seeking a simple determination: “that the levy lid lift be declared for what it is – temporary – so that it will expire by its terms at the end of this year and the levy rate for District No. 3 revert to what it should be without the levy lid lift.”
Fire District No. 3 Commissioners Mark Zoller, Jon Riggleman, and Lester Penney made the district’s levy permanent last spring following consultation with the Property Tax Division of the state Department of Revenue, Klickitat County officials, and its attorney, Brian Snure of Des Moines, over whether the district’s Nov. 6, 2007 voter-approved 6-year levy lid lift was intended to be temporary or permanent. In their May 7 letter to County Assessor Darlene R. Johnson, the commissioners stated, “This letter is to confirm that on August 7, 2007, the Board of Commissioners of Klicktiat County Fire Protection District No. 3 approved Resolution No. 08-07-07LL, which placed a multi-year lid lift on the November 2007 ballot. The Board of Commissioners’ intent was to seek voter approval for a permanent multi-year lid lift.”
Starting in 2013, the new base rate for Fire District No. 3 is 92 cents per $1,000 of assessed valuation. Future annual increases in the levy will be limited to 1 percent by statute, though the Fire Board has opted not to collect the 1 percent increase in 2014, according to Fire Chief Chuck Virts.
The upshot for the 6-year levy lid lift Fire District No. 3 voters approved is that officials at three levels of government have determined that the levy lift was intended to be a permanent lift, not a temporary one. Before July 2007, the option of running a multi-year levy lid lift was not available to fire districts. That changed in 2007 when amendments to the laws governing property tax levies went into effect. One change authorized all taxing districts to request multi-year levy lid lifts. (The Legislature reversed these amendments in 2008.)
Last spring, Fire District No. 3 commissioners began discussing running a new multi-year levy lid lift to replace the one that expires at the end of this year. They contacted their attorney for assistance in writing a resolution for the new proposition, which had to be filed with the County Auditor by May 10 to qualify for the August Primary Election ballot. The advice the Fire Board got back from its attorney in late April was unexpected, to say the least.
“Ever since I’ve been fire chief, that’s where we’ve been headed as an organization; we were going to run another lid lift after six years,” Virts said in an interview with The Enterprise. “Then our attorney advised us we didn’t need to run another lid lift because we already had it. We were shocked when we heard this.”
Snure informed the Fire District in an e-mail dated April 30 that, based on his review of the 2007 ballot title and applicable state levy law as it existed in 2007, “it is my opinion that your 2007 multi-year lid lift was a permanent and not a temporary lid lift. Accordingly, the amount you levied in 2012 for collection in 2013 will serve as your base for future levies.”
He continued, “This answer results from the fact that you ran, and your voters approved, the multi-year lid lift under the initial multi-year lid lift law (chapter 380, laws of 2007) rather than the law as revised in 2008. Under the initial law, unless you specifically made the lid lift temporary, which based on my review of your ballot language you did not, then the lid lift was, by default, permanent.”
Snure also pointed to a 2008 state Attorney General Opinion (AGO), which sought to answer the following question from the state Department of Revenue: “If a taxing district gains voter approval for a multi-year property tax levy lid lift as permitted by RCW 84.55.050 as amended by the Laws of 2007, chapter 380, and the district does not specify that the levy is for a limited period of time or for a limited purpose, what is the proper calculation of the district’s levy limit for years following the expiration of the approved levy lid lift?”
The opinion from then Attorney General Rob McKenna and his deputy solicitor general, James K. Pharris, determined, “Because the language of 84.55.050 as amended by the Laws of 2007, chapter 380, is plain and unambiguous, there is no need to consider extrinsic factors such as the measure’s legislative history. Based on the language of the statute, then, we conclude that except where a taxing district specifically provides for a ‘temporary’ base adjustment, the district’s levy lid limit will be based on the actual amount levied in the final year of a multi-year levy lid period as approved by the voters, adjusted annually by the appropriate limit factor.”
Snure noted that, under his interpretation of the 2008 AGO, “because your lid lift did not ‘expressly specify that the ballot proposition is for a limited period or to satisfy a limited purpose,’ the voters approved a permanent lid lift.” He also noted that the Attorney General Opinion “addresses the fact that a six-year lid lift will generally always reference a six-year period of time so the simple fact that your ballot title specified maintaining the rate for six years —which actually is not allowed under the statute — did not convert the lid lift into a temporary lift. If the county disagrees, please advise, otherwise this should allow [the district] to levy 101 percent of your 2012 levy for collection in 2014 with the cost of running another lid lift proposition.”
So, how did something so seemingly straightforward become so complicated?
According to Virts and County Assessor Darlene Johnson, neither of whom was in office in 2007, confusion was sown at the time the Fire District’s levy resolution and ballot title were written with the help of county officials. The result of that process was a non-conforming ballot title that tried to have it both ways.
“Fire District 3’s ballot was written as if it was a permanent lid lift yet part of it was written as a temporary lid lift,” Johnson told The Enterprise by e-mail.
“A multi-year lid lift allows a district to increase its levy by more than one percent over its highest lawful levy for up to six consecutive years. Normally, the six-year limit factor is stated as a percentage rather than a specific dollar amount,” Johnson continued. “This is where there was some confusion in the past that this was not a permanent lid lift but a temporary lid lift.” She added, however, “There is no mention in [the Fire District’s 2007 ballot] that it is specifically a temporary lid lift.”
The ballot for the 2007 Fire District levy lid lift read as follows: “The Commissioners of Klickitat County Fire District No. 3 adopted a resolution to increase the property tax levy in order to stay abreast [of] rising costs encountered in protecting the health, life and fire safety of district residents. The levy would increase the expense levy to 92 cents per thousand dollars of assessed value (32 cents per thousand over the 2007 rate) for collection in 2008 and maintain that levy rate for six years.”
Fire District voters approved the 2007 levy lid lift, 551 Yes to 443 No (55.43 percent to 44.57 percent).