COUNTIES ‑- POLICE POWER ‑- ZONING

COUNTIES ‑- POLICE POWER ‑- ZONING

There may be partial or piecemeal zoning of a county under RCW 36.43.020, but license fees within any class must be equal.

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                                                               December 14, 1953

Honorable Maloy Sensney
Prosecuting Attorney
Benton County
Fisk Building
Prosser, Washington                                                                                                              Cite as:  AGO 53-55 No. 182

Attention:  Herbert H. Davis

Dear Sir:

            You stated, in a letter dated November 17, 1953, that you were faced with a problem in Benton County, and asked:

            "Would it be possible for the county to make an ordinance setting up a building code with fees for permits in the area around and adjacent to the city of Kennewick and still not have the ordinance or resolution affect the rest of the county?"

            We believe that the question may be answered in the affirmative, with the exceptions noted below.

                                                                     ANALYSIS

            The adoption of building codes in counties is authorized by RCW 36.43.010, which provides:

             [[Orig. Op. Page 2]]

            "The boards of county commissioners may adopt standard building codes and standard fire regulations to be applied within their respective jurisdictions."

            The validity of this statute has been considered, directly or indirectly, by our court in the cases ofState ex rel. Warner v. Hayes Investment Corporation, 13 Wn. (2d) 306, 125 P. (2d) 262; Park v. Stolzheise, 24 Wn. (2d) 781, 167 P. (2d) 412; King County v. High, 36 Wn. (2d) 580, 219 P. (2d) 118.

            The problem of a real extent and distribution of zones in a zoning system, is considered in RCW 36.43.020:

            "The building codes or fire regulations when adopted by the board of county commissioners shall be applicable to all the area of the county situated outside the corporate limits of any city or town, or to such portion thereof as may be prescribed in such building code or fire regulation."  (Emphasis supplied)

            The statute seems to allow a partial or piecemeal zoning, and thus in your case would allow the area around and adjacent to Kennewick to be zoned, while leaving the remainder of the county free from restrictions.  Piecemeal zoning was not favored by the common law, but it is expressly authorized by the quoted statute.  Care must be exercised, however, to prevent the violation of other connected principles of law, such as unreasonable classification ‑ with no comprehensive planning and with no relation to the general welfare ‑ as in Johnson v. The City of Huntsville, 29 So. (2d) 342, orState ex rel. Warner v. Hayes Investment Corporation, supra.  Also, arbitrary spot zoning must be avoided.  State ex rel. Miller v. Cain, 40 Wn. (2d) 216, 242 P. (2d) 505.  Building restrictions may vary, within the bounds of reason, in different zones of the system though, so long as the restrictions come within the province of the police power.  The word "zone" itself implies a difference, for it must be possible to distinguish one zone from another.  We believe it is permissible to have stricter building regulations in one part of the county than in some other, or to have building regulations only in part of the county.

            The question of whether there may be different fees in different areas of the county is also presented.  In the exercise of the police power, as in the administration of this zoning ordinance, the state or its agent has wide discretion in determining its own public policy, and what measures are necessary for its own  [[Orig. Op. Page 3]] protection and to promote the general safety, peace and good order.  Terrace v. Thompson, 44 S.Ct. 15, 263 U.S. 197, 68 L.Ed. 255.  The legislature may not, however, under the guise of police power, impose unnecessary and unreasonable restrictions on the use of private property or the pursuit of useful occupations.  State of Washington ex rel. Seattle Title Trust Co. v. Roberge, 49 S.Ct. 50, 2 U.S. 116, 73 L.Ed. 210, 86 A.L.R. 654, reversing 144 Wash. 74, 256 Pac. 781.  Generally a license or permit fee must bear some reasonable relation to the expense of supervision and regulation of the activity licensed, and it must not be so unreasonable and disproportionate as to impugn the good faith of the licensing statute and come within the prohibition of the 14th Amendment; Great Northern Railway Company v. State of Washington, 57 S.Ct. 397, 300 U.S. 154, 81 L.Ed. 573, reversing 184 Wash. 648, 52 P. (2d) 1274.  In a proper case, however, counties may, under the police power, establish different permit fees for different classes where this is a proper means of regulation.  We believe, if part of the county has building restrictions and part does not, it would not be discriminatory to charge a fee for building permits only in the controlled area; however, we do not believe that there can be different fees for permits within the same class in the controlled area, for to allow this would constitute a denial of equal protection of the law.

Very truly yours,

DON EASTVOLD
Attorney General

KEITH S. BERGMAN
Assistant Attorney General