CITIES AND TOWNS ‑- THIRD CLASS ‑- COMPREHENSIVE ZONING PLAN ‑- AMENDMENT ‑- REQUIREMENT FOR PUBLIC HEARING

CITIES AND TOWNS ‑- THIRD CLASS ‑- COMPREHENSIVE ZONING PLAN ‑- AMENDMENT ‑- REQUIREMENT FOR PUBLIC HEARING.

(1) Where a third class city purports to amend a comprehensive zoning plan pursuant to RCW 35.63.120 a public hearing must be held before the city council even though the proposed supplementation or amendment was given a public hearing before the planning commission.

(2) A third class city in amending a zoning ordinance adopted pursuant to a general comprehensive zoning plan must hold a "public hearing" before the city council as provided in RCW 35.63.120 even though such item had been given a hearing before the planning commission.

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                                                                   March 2, 1964

Honorable John Bigley
State Representative, 30th District
26903 ‑ 148th S.E.
Kent, Washington

                                                                                                                Cite as:  AGO 63-64 No. 87

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on two questions which we have paraphrased as follows:

            (1) Where a third class city purports to amend a comprehensive zoning plan pursuant to RCW 35.63.120, is there a necessity for a public hearing before the city council as provided for therein even though the proposed supplementation or amendment was given a public hearing before the city planning commission?

            (2) Is there a requirement for a third class city in amending azoning ordinance adopted pursuant to a general comprehensive zoning plan to have a "public hearing" before the city council as provided in RCW 35.63.120 even though such item had been given a hearing before the planning commission?

            We answer both questions in the affirmative as set forth in the analysis.

                                                                     ANALYSIS

            The pertinent statutory provision with respect to amending comprehensive zoning plans, or regulations adopted pursuant to such plans, is RCW 35.63.120 (as last amended by § 1, chapter 194, Laws of 1957), which provides:

             [[Orig. Op. Page 2]]

            "Any ordinance or resolution adopting any such plan or regulations, or any part thereof, may be amended, supplemented or modified by subsequent ordinance or resolution.

            "Proposed amendments, supplementations, or modifications shall first be heard by the commission and the decision shall be made and reported by the commission within ninety days of the time that the proposed amendments, supplementations, or modifications were made.

            "The council or board, pursuant to public hearing called by them upon application therefore by any interested party or upon their own order, may affirm, modify or disaffirm any decision of the commission."  (Emphasis supplied.)

            The statement contained inState v. Thomasson, 61 Wn.2d 425, 378 P.2d 441 (1963) at page 427, is particularly applicable to the analysis here:

            "One of the fundamental principles in connection with the enactment of zoning ordinances or resolutions is that the enabling legislation must be followed.  1 Yokley, Municipal Corporations § 157 (b)."  (Emphasis supplied.)

            With this standard in mind the language of RCW 35.63.120 prior to the above noted 1957 amendment should be examined for purposes of comparison.  The old statutory provision provided:

            "Any ordinance or resolution adopting any such plan or regulations, or any part thereof, may be amended, supplemented or modified by subsequent ordinance or resolution adopted upon recommendation of or with the concurrence of the commission."

            Lauterback v. Centralia, 49 Wn.2d 550, 304 P.2d 656 (1956), questioned the authority of the Centralia city council to adopt an ordinance amending zone classifications under this statute without the concurrence of the planning commission.  The court held that because of the peculiar language contained in the statute as it then read the "concurrence or recommendation" of the planning commission was an essential element for the enactment of such amendatory ordinance.  Therefore, the council was without authority in the absence  [[Orig. Op. Page 3]] of the commission's concurrence.  This case undoubtedly precipitated the legislature's revision to this statute by § 1, chapter 194, Laws of 1957,supra.

            The present language of RCW 35.63.120, supra, affords the basis upon which your questions are to be answered.  It is a well-established rule of statutory interpretation that where language is plain, and standing alone fairly susceptible of only one construction, that construction must be given.  See, Public Hosp. Dist. No. 2 of Okanogan Co. v. Taxpayers, 44 Wn.2d 623, 269 P.2d 594 (1954), and State v. Houck, 32 Wn.2d 681, 203 P.2d 693 (1949).

            With this rule in mind, the last paragraph of RCW 35.63.120, supra, must be read as meaning that whenever the council affirms, modifies, or disaffirms any decision of the commission, such action must be pursuant to a public hearing called in accordance therewith.  The statutory language does not appear to permit any exceptions to such public hearing requirement.

            Thus, it is our opinion that both of your questions are answerable in the affirmative.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

DEAN A. FLOYD
Assistant Attorney General