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AGO 1970 No. 1 - January 13, 1970
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Slade Gorton | 1969-1980 | Attorney General of Washington

PLATTING - AUTHORITY TO ACQUIRE DRAINAGE RELEASES AS CONDITION TO APPROVAL OF PROPOSED PLAT.

Under the provisions of chapter 271, Laws of 1969, Ex. Sess., the legislative body of a county, city or town may not require that a platter, as a condition precedent to approval of the proposed plat, secure so-called "drainage releases" from third party owners of land situated outside of the area proposed to be platted.

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                                                                 January 13, 1970

 

Honorable William A. Gissberg
State Senator, 39th District
Legislative Building
Olympia, Washington 98501                                                                                                                   Cite as:  AGO 1970 No. 1

 

Dear Sir:

            By letter previously acknowledged, you have requested the opinion of this office upon a question which we paraphrase as follows:

            Do the provisions of chapter 271, Laws of 1969, Ex. Sess., authorize the legislative body of a county, city or town to require that a platter, as a condition precedent to approval of the proposed plat, secure so-called "drainage releases" from third party owners of land situated outside of the area proposed to be platted?

            We answer your question in the negative for the reasons which appear in the analysis below.

                                                                     ANALYSIS

            Chapter 271, Laws of 1969, Ex. Sess., constitutes a new and comprehensive state law regarding the platting of subdivisions and the dedication of land located therein for public uses.  The "drainage releases" to which your question refers are evidently documents which are to be executed by persons owning land located outside of the area proposed to be platted,  [[Orig. Op. Page 2]] and which waive claims for damages against the county on account of the flow of drainage waters from the area of the plat.  Two sections of chapter 271, Laws of 1969, Ex. Sess., are particularly germane to your inquiry; namely §§ 11 and 30.1/

             Section 11 states the conditions under which a plat of a proposed subdivision is to be approved by the city, town or county legislative body to which it is submitted, and provides as follows:

            "The city, town, or county legislative body shall inquire into the public use and interest proposed to be served by the establishment of the subdivision and dedication.  It shall determine if appropriate provisions are made in the subdivision for, but not limited to, drainage ways, streets, alleys, other public ways, water supplies, sanitary wastes, parks, playgrounds, sites for schools and schoolgrounds, and shall consider all other relevant facts and determine whether the public interest will be served by the subdivision and dedication.  If it finds that the plat makes appropriate provisions for the public health, safety and general welfare and for such drainage ways, streets, alleys, other public ways, water supplies, sanitary wastes, parks, playgrounds, sites for school and schoolgrounds and that the public use and interest will be served by the platting of such subdivision, then it shall be approved.  Dedication of land to any public body shall be clearly shown on the final plat.  The legislative body shall not as a condition to the approval of any plat require a release from damages to be procured from other property owners."  (Emphasis supplied.)

            Section 30 describes the contents of a certificate which is to accompany the final plat or short plat of any subdivision or short subdivision, and is to be executed by all parties having any interest in the lands subdivided.  This section  [[Orig. Op. Page 3]] provides, in pertinent part, as follows:

            "Every final plat or short plat of a subdivision or short subdivision filed for record must contain a certificate giving a full and correct description of the lands divided as they appear on the plat or short plat, including a statement that the subdivision or short subdivision has been made with the free consent and in accordance with the desires of the owner or owners.  If the plat or short plat includes a dedication, the certificate shall also contain the dedication of all streets and other areas to the public, and individual or individuals, religious society or societies or to any corporation, public or private as shown on the plat or short plat and a waiver of all claims for damages against any governmental authority which may be occasioned to the adjacent land by the established construction, drainage and maintenance of said road.  Said certificate shall be signed and acknowledged before a notary public by all parties having any interest in the lands subdivided."  (Emphasis supplied.)

            An apparent conflict exists between the underscored provisions of these two sections.  Either a county, city or town is, under § 11, forbidden ". . . as a condition to the approval of any plat [to] require a release from damages to be procured from other property owners. . . ." or, under § 30, it may require the execution of ". . . a waiver of all claims for damages against any governmental authority which may be occasioned to the adjacent land by the . . . construction, drainage and maintenance of . . . [a dedicated] road."

            When faced with an apparent conflict between two sections of the same legislative enactment, our supreme court has consistently ruled that, before concluding that one section must fall while the other stands, every attempt must be made to reconcile the apparent conflict so as to preserve and give effect to both provisions.  See, e.g.,Booth Fisheries Corp. v. Case, 182 Wash. 392, 396, 47 P.2d 834 (1935), and cases cited therein.  What we are here required to do ". . . is to find the meaning of some not very difficult words."  Northern  [[Orig. Op. Page 4]] Securities Co. v. United States, 193 U.S. 197, 24 S.Ct. 436, 468, 48 L.Ed. 679, 726 (1903) (dissenting opinion per Holmes, J.).  We say "'not very difficult'" because we think that these provisions are easily reconciled.

            Section 11 states that the county, city or town ". . . shall not as a condition to the approval of any plat require a release from damages to be procured fromother property owners."  (Emphasis supplied.)  In the context of § 11, "other property owners" can mean only property owners other than those owning property within the area proposed to be platted.  Thus, persons owning property outside of the area proposed to be platted arespecifically exempted from any requirement that they file releases from claims for damages.  This conclusion becomes virtually inevitable when it is noted that § 30 requires that the waivers required to be filed by that section are to be filed ". . . by all parties having any interest in the lands subdivided."  (Id., emphasis supplied.)  Thus, only those persons having an interest in the lands subdivided are required by § 30 to file drainage releases or waivers of other claims for damages, and persons owning interests in lands outside of the subdivision are specifically exempted from such requirement by § 11.

            We trust that this information will be helpful to you.

Very truly yours,

SLADE GORTON
Attorney General

DONALD FOSS, JR.
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/We assume for purposes of analysis the platting of a subdivision to which both §§ 11 and 30 would be applicable.  See, § 6 of the act for a statement of certain types of plats to which §§ 11 and 30 might not be applicable.

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