COUNTIES & CITIES ‑- PLANNING COMMISSION -- PLATTING & SUBDIVIDING OF LAND

COUNTIES & CITIES ‑- PLANNING COMMISSION --PLATTING & SUBDIVIDING OF LAND

1. Under RCW 58.16.010, the legislature has regulated the platting and subdividing of any land into 5 or more lots.

2. The county is authorized under chapter 35.63 RCW to regulate the subdivision of two or more lots, to require conformance with platting and subdividing regulations and certain standards for access to property and for the issuance of building permits as part of a comprehensive county plan.

3. RCW 58.16.100 enables a city or county to enjoin sale of property described by metes and bounds where sale is part of subdivision of 5 or more lots.

4. Chapter 58.16 RCW provides penalties for its violation and a city need not enact an ordinance in order to enforce the chapter.

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                                                                   June 26, 1957

Honorable Robert A. Hensel
Prosecuting Attorney
Douglas County
Waterville, Washington                                                                                                                Cite as:  AGO 57-58 No. 88
 

Dear Sir:

            You requested the opinion of this office on several questions pertaining to municipal development.  We paraphrase your questions as follows:

            (1) To what type of platting and subdivision does RCW 58.16.010 pertain?

            (2) AGO 1953-55 No. 329 held that a city may regulate the subdivision  [[Orig. Op. Page 2]] of two or more lots under RCW 58.12.140.  Do the provisions of chapter 35.63 RCW grant the same authority to counties?

            (3) Can a county adopt ordinances on the basis of RCW chapter 35.63 relating to the issuance of building permits and requiring conformance with certain platting and subdividing regulations as a part of a comprehensive county-wide plan?

            (4) Is the county authorized to adopt ordinances pertaining to the standards for access to property and requiring conformance with certain platting and subdividing regulations as a part of a comprehensive county plan?

            (5) Does RCW 58.16.100 enable a city or county to enjoin sales of property by metes and bounds where such subdivision would constitute the fifth division of an original tract?

            (6) Must the municipality enact an ordinance defining violations and providing penalties in order to enforce RCW 58.16.010, RCW 58.16.020 and RCW 58.16.100?

            We answer question (1) by stating that the type of platting and subdividing to which RCW 58.16.010 pertains is land generally without qualification.  We answer questions (2) through (4) in the affirmative; and questions (5) and (6) in the negative.

                                                                     ANALYSIS

            (1) Section 1, chapter 186, Laws of 1937, from which RCW 58.16.010 is derived, provides:

            "The platting and subdividing of land into lots, or tracts comprising five (5) or more of such lots or tracts, or containing a dedication or any part thereof as a public street or highway is hereby required to proceed under, and in compliance with, the provisions of this act."

            A well established rule of statutory construction, recognized by our court,  [[Orig. Op. Page 3]] is that a statute which is not ambiguous must be interpreted according to the plain and ordinary meaning of the language used.  Sandona v. Cle Elum, 37 Wn. (2d) 831.

            The legislature in § 1, chapter 186, Laws of 1937, by using the word "land" without an antecedent qualification, must necessarily have intended reference to all land regardless of previous subdividing and platting which might have been made as to certain property.  It should be noted in this regard, however, that § 1, chapter 186, Laws of 1937 (RCW 58.16.010), pertains only to the platting and subdividing of land into five or more lots or tracts.  Therefore, the platting or subdividing of land into less than five lots or tracts, or into a tract which does not contain a dedication as a public street or highway, is not governed by chapter 186, Laws of 1937 (chapter 58.16 RCW, as amended).

            (2) Chapter 35.63 RCW consists of the codification of chapter 44, Laws of 1935.  Said chapter is a comprehensive and interrelated group of sections which enables a city or county to regulate the physical development of a municipality.

            Regulation of the subdividing of two or more lots referred to in the second question is specifically treated by RCW 35.63.080.  Said statute is in pertinent part as follows:

            "The council or board may provide for the preparation by its commission and the adoption and enforcement of coordinated plans for the physical development of the municipality.  For this purpose the council or board, in such measure as is deemed reasonably necessary or requisite in the interest of health, safety, morals and the general welfare, upon recommendation by its commission, by ordinance or resolution may regulate and restrict the location and the use of buildings, structures and land for residence, trade, industrial and other purposes; the height, number of stories, size, construction and design of buildings and other structures; the size of yards, courts and other open spaces on the lot or tract; the density of population; the set-back of buildings along highways, parks or public water frontages; andthe subdivision and development of land. . . ." (Emphasis supplied.)

             [[Orig. Op. Page 4]]

            The aforementioned statute grants to the board of county commissioners the authority to pass ordinances or resolutions for the purpose of regulating and restricting the subdivision of land.  The sole restriction imposed upon the board by said statute is that any resolution or ordinance passed for such purpose must be reasonably necessary in the interest of health, safety, morals and the general welfare.  In this regard it is important to note that the case of State ex rel. Warner v. Hayes Investment Corp., 13 Wn. (2d) 306, makes compliance with the aforestated restrictions absolutely necessary.

            (3) and (4).  Questions (3) and (4) are closely related and involve an interpretation of the same statutes.  To avoid repetition, we will answer them together.

            As was stated in answer to the second question, chapter 35.63 RCW was intended to serve as authority for a municipality to adopt a complete and coordinated plan of development.  Such purpose was plainly indicated by the first phrase of RCW 35.63.090, to-wit:

            "All regulations shall be worked out as parts of a comprehensive plan which each commission shall prepare for the physical and other generally advantageous development of the municipality and shall be designed, among other things, to encourage the most appropriate use of land throughout the municipality; . . ."

            In addition to specifically providing for the passage by the board of county commissioners of ordinances or resolutions directly pertaining to the subdivision of land, RCW 35.63.080 constitutes authority for the passage of ordinances or resolutions for the regulation and restriction upon the location use and specifications of "buildings" and "open spaces" on a lot or tract.  The reference to the word "buildings" pertains to the third question, while the words "open spaces" found in RCW 35.63.080 are certainly broad enough to include matters of access referred to in the fourth question.

            The sole restriction upon the passage of ordinances or resolutions that pertain to the aforementioned subjects is that they be reasonably necessary in the interest of health, safety and the general welfare (RCW 35.63.080).  The fact that ordinances or resolutions relating to building and access specifications require that the property upon which they are to be exercised  [[Orig. Op. Page 5]] must conform with certain platting regulations would certainly in itself not constitute a violation of the aforementioned requirements.  Conversely, it would tend to insure that the public health, safety, and general welfare would be protected because it would tend to coordinate a comprehensive plan for municipal growth.  Of course, it should be stated that each specification or requirement must in and of itself be in the interest of the public health, safety and general welfare to be valid.  State ex rel. Warner v. Hayes, supra.

            (5) Section 11, chapter 186, Laws of 1937, as amended by § 1, chapter 224, Laws of 1951 (RCW 58.16.100), referred to in the fifth question, provides in part as follows:

            "The owner or agent of the owner of land located in a plat or subdivision, who transfers or sells, or agrees to sell or option any land by reference to or exhibition of or by any other use of a plat or map of a subdivision, before it has been approved and filed shall forfeit and pay a penalty of one hundred dollars for each lot or parcel so transferred, or sold or agreed or optioned to be sold.  The description of the lot by metes and bounds in the instrument of transfer, agreeing or optioning, shall not exempt the transaction from the penalty, or from the remedies herein provided.  The city, town, or county authority may enjoy the transfer, sale agreement, or option by action in the superior court, or may recover the penalty in a civil action: . . ."

            In a letter to you dated June 23, 1953, we advised that RCW 58.16.010 (§ 1, chapter 186, Laws of 1937) did not apply to piecemeal sales of separate portions of a given tract of land over a prolonged period of time, but was only intended to apply to a situation where the real estate was originally divided with the intent to create an actual real estate subdivision encompassing five or more lots.  Thus under that interpretation and the provisions of RCW 58.16.100, cited above, the city or county would be authorized to enjoin sales of property when the description is by metes and bounds only where the actual subdivision contained five or more lots.  It would not apply to a situation where the owner of a piece of real property has sold, over a long period of time, several portions of the property in question without specifically intending to subdivide the property into five or more lots.

            The question as to whether or not the city or county could enjoin the sale of property described by metes and bounds which was in violation of the subdivision ordinances or regulations would depend upon the actual provisions of such  [[Orig. Op. Page 6]] ordinances or regulations.  In any event, such a remedy would be supplementary to the remedies provided by chapter 58.16 RCW.

            (6) A municipality is specifically authorized to enforce compliance with the provisions of chapter 58.16 RCW.  RCW 58.16.020 requires that each plat, subdivision or dedication, before any of its lots or tracts may be sold, must be submitted for approval to the legislative or planning authority.

            RCW 58.16.030 provides that if the land to be platted or subdivided is in a city or town, the proposal shall be submitted to the legislative body of the city or town.

            RCW 58.16.090 provides for the legal procedures to be followed when a plat or subdivision is filed without the proper approval.  It specifically provides as follows:

            "The county auditor shall refuse to accept for filing any plat, subdivision, or dedication until approval thereof has been given by the appropriate city, town, or county authority.  Should a plat, subdivision, or dedication be filed without approval, the prosecuting attorney of the county in which the plat is filed shall apply for a writ of mandate to the superior court in the name of and on behalf of the city, town, or county authority required to approve, requiring the auditor and assessor to remove from their files or records the plat, subdivision, or dedication.  The costs of the action shall be taxed against the auditor."

            An additional remedy is provided in RCW 58.16.100, in the form of a penalty of $100 for each lot sold or agreed to be sold where the plat or subdivision has not been approved.

            Accordingly, a municipality need not enact an ordinance defining violations and providing penalties in order to enforce the provisions of chapter 58.16 RCW.

            However, the enactment of a specific ordinance on the same subject, and  [[Orig. Op. Page 7]] consistent with the provisions of the statute, would, we think, facilitate the enforcement of platting laws and ordinances.

            Please advise if we can be of further assistance.

Yours very truly,

JOHN J. O'CONNELL
Attorney General

DOUGLAS HARTWICH
Assistant Attorney General