Washington Supreme Court invalidates Mason County conservation assessment

by Michael Reitz
General Counsel
Freedom Foundation


Olympia, WA - Today the Washington State Supreme Court delivered a win to four Mason County residents who disputed a special assessment that Mason County had levied on nonforest lands.

In 2003, Mason County imposed an annual assessment of $5.00 on certain parcels to “create a fund dedicated to addressing water resource protection issues within Mason County.” By 2007 the county had collected more than $1.1 million from the assessment. A group of property owners (James R. Cary, Mary Alice Cary, John E. Diehl and William D. Fox Sr.) challenged the validity of the assessment. The trial court ruled that the county had levied an unconstitutional tax, but the Court of Appeals upheld the assessment in 2009. The Supreme Court agreed to review the case in 2010.

The Freedom Foundation (formerly the Evergreen Freedom Foundation) filed two amicus curiae (“friend of the court”) briefs in support of the property owners who challenged the assessment, and also participated in oral arguments before the Supreme Court. The Foundation was represented by Richard Stephens and Brian Amsbary of Groen, Stephens & Klinge LLP. The Foundation argued that the Court of Appeals ignored the distinctions between special assessments, taxes, and fees, and that the decision weakens constitutional restrictions placed on governments that wish to adopt new assessments and taxes.

Today the Supreme Court issued a unanimous ruling in favor of the property owners. Justice Gerry Alexander wrote the opinion. The decision turned on Mason County’s failure to comply with statutory requirements when imposing special assessments for natural resource conservation. The residents who challenged the assessment will be entitled to refunds. 

“This unanimous decision represents a significant victory for property owners against creative government financing schemes that fail to comply with statutory requirements,” Richard Stephens said. “The Freedom Foundation provided briefing and argument that encouraged the Court to reach the favorable ruling in this case.”

“Congratulations to the group of determined residents who fought back against this assessment,” said Michael Reitz, general counsel of the Freedom Foundation. “Their determination in waging a nine year battle against Mason County is impressive.”

The case is Cary, et al. v. Mason County, No. 83937-9.