Oregon Advisory Opinions January 21, 1971: OAG 71-4 (January 21, 1971)

OAG 71-4.

The Sunset Empire Park & Recreation District was created pursuant to chapter 266 of the Oregon Revised Statutes which, among other things, authorizes the district to levy a tax each year not to exceed one-fourth of one percent (.0025) of the true cash value of taxable property in the district. ORS 266.410(5), 266.420. The district has not yet established a tax base, and we are asked whether the district may levy a tax within the limits specified by ORS 266.420 without first having an election to acquire a tax base.

Article XI, § 11, of the Oregon Constitution, provides, in part, as follows:

"(1) Except as provided in subsection (3) of this section, no taxing unit, whether it be the state, any county, municipality, district or other body to which the power to levy a tax has been delegated, shall in any year so exercise that power to raise a greater amount of revenue than its tax base * * *.

"(2) The tax base of each taxing unit in a given year shall be one of the following:

"(a) The amount obtained by adding six percent to the total amount of tax lawfully levied by the taxing unit, exclusive of amounts described in paragraphs (a) and (b) of subsection (3) of this section, in any one of the last three years in which such a tax was levied by the unit; or

"(b) An amount approved as a new tax base by a majority of the legal voters of the taxing unit voiting on the question * * *"

"(3) The limitation provided in subsection (1) of this section shall not apply to:"

"(b) That portion of any tax levied which is specifically voted outside the limitation imposed by subsection (1) of this section by a majority of the legal voters of the taxing unit voting on the question."

The above provisions have been interpreted by this office(fn1) to mean that before a newly formed taxing unit may levy a tax, it must do one of two things: (1) It must establish a tax base by successfully submitting the proposed tax base to the voters of the district at a regular, state-wide, general or primary election pursuant to Or. Const. art. XI, § 11(2)(b); or (2) it must secure authorization for the tax levy from the voters of the district at a special election pursuant to Or. Const. art. XI, § 11(3)(b).

An election is required in either case. If the district chooses to establish a tax base, subsequent levies may be made within the constitutional and statutory limitations without further voter approval. On the other hand, should the district choose to submit the question of a tax levy to the voters, the levy, if approved, would not establish a tax base.

In summary, it is our opinion that the Sunset Empire Park & Recreation District need not establish a tax base, but may levy a tax as provided by ORS 266.420 if the levy is specifically authorized by the legal voters of the district voting upon the question at a special election.