AUTHORITY OF COUNTY TO REGULATE CERTAIN SUBDIVISIONS

PLATS AND PLATTING ‑- COUNTIES ‑- AUTHORITY OF COUNTY TO REGULATE CERTAIN SUBDIVISIONS

A county may, by ordinance, require the platting of subdivisions in accordance with chapter 58.17 RCW in any case in which the smallest lot within a subdivision is fifty acres or less in area.

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                                                                   April 12, 1976

Honorable Hubert F. Donohue
State Senator, 9th District
Route 2, Box 13
Dayton, Washington 99328                                                                                                               Cite as:  AGLO 1976 No. 28

Dear Senator Donohue:

            By recent letter you have requested our opinion on a question which we paraphrase as follows:

            May a county, by ordinance, require the platting of subdivisions in accordance with chapter 58.17 RCW in any case in which the smallest lot within a subdivision is fifty acres or less in area?

            We answer the foregoing question in the affirmative.

                                                                     ANALYSIS

            Chapter 271, Laws of 1969, Ex. Sess., (now codified as chapter 58.17 RCW) was enacted as a uniform platting of subdivisions act.  See, AGO 1970 No. 14 [[to Martin J. Durkan, State Senator on June 23, 1970]], copy enclosed.  As further indicated in that opinion, however, in § 4 of the original act (RCW 58.17.040) the legislature enumerated certain types of subdivisions to which the act was not intended to apply.  This section provided as follows:

            "The provisions of this chapter shall not apply to:

            "(1) Cemeteries and other burial plots while used for that purpose;

            "(2) Divisions of land into lots or tracts where the smallest lot is twenty acres or more and not containing a dedication of a public right-of-way;

            "(3)Divisions of land into lots or tracts none of which are smaller than five acres and not containing a dedication unless the governing authority  [[Orig. Op. Page 2]] of the city, town or county in which the land is situated shall have by ordinance provided otherwise.

            "(4) Divisions made by testamentary provisions, the laws of descent, or upon court order."  (Emphasis supplied.)

            Based upon the above underscored provisions of subsection (3) of this statute we advised that:

            "A subdivision of land containing no dedication and no lots or tracts smaller than five acres in size may be made subject to the provisions of chapter 271, Laws of 1969, Ex. Sess., if the county, city or town in which the land is situated enacts an ordinance so providing ‑ and it is not necessary that such an ordinance shall have been enacted prior to the effective date of the 1969 act."

            Thereafter, in 1974, RCW 58.17.040, supra, was amended by § 2, chapter 134, Laws of 1974, Ex. Sess.  Set forth in bill form for ease of reference, that amendment so altered the terms of the original statute as to cause it now to read, in material part, as follows:

            "The provisions of this chapter shall not apply to:

            "(1) Cemeteries and other burial plots while used for that purpose;

            "(2) Divisions of land into lots or tracts ((where the smallest lot is twenty acres or more and not containing a dedication of a public right of way;

           "(3) Divisions of land into lots or tracts none)) each of which is ((are smaller than)) one‑one hundred twenty-eighth of a section of land or larger, or five acresor larger ((and not containing a dedication)) if the land is not capable of description as a fraction of a section of land, unless the governing authority of the city, town, or county in which the land is situated shall have ((by ordinance provided otherwise;

             [[Orig. Op. Page 3]]

           "(4))) adopted a subdivision ordinance requiring plat approval of such divisions:  PROVIDED, That for purposes of computing the size of any lot under this item which borders on a street or road, the lot size shall be expanded to include that area which would be bounded by the center line of the road or street and the side lot lines of the lot running perpendicular to such center line;

            ". . ."

            In essence, what the legislature did by this 1974 amendment was to combine subsections (2) and (3) of RCW 58.17.040 so as to establish a single class of divisions to which the state law would not apply,

            ". . . unless the governing authority of the city, town, or county in which the land is situated shall have adopted a subdivision ordinance requiring plat approval of such divisions: . . ."

            That class, in the present words of the statute, encompasses:

            "Divisions of land into lots or tracts each of which is one‑one hundred twenty-eighth of a section of land or larger, or five acres or larger if the land is not capable of description as a fraction of a section of land, . . ."

            Nevertheless, insofar as the qualifying language of the statute is concerned, the reasoning which we utilized in AGO 1970 No. 14, supra, as well as the conclusion which we there reached, remains valid.  Accordingly, notwithstanding the intervening 1974 amendment to RCW 58.17.040, we at this time reaffirm the foregoing 1970 opinion and, on the basis thereof, answer your present question, as above paraphrased, in the affirmative.

             [[Orig. Op. Page 4]]

            It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General