COUNTIES ‑- ZONING LAWS ‑- PLANNING COMMISSIONS

COUNTIES ‑- ZONING LAWS ‑- PLANNING COMMISSIONS

Under the provisions of the planning enabling act (chapter 36.70 RCW), a board of county commissioners may not amend a zoning ordinance pursuant to an application for rezoning in a manner contrary to the recommendation of the planning commission, without a public hearing.

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                                                                February 10, 1971

Honorable Earl F. Angevine
Prosecuting Attorney
Skagit County
Legal Building
Mount Vernon, Washington 98273

                                                                                                                   Cite as:  AGO 1971 No. 8
Dear Sir:

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

            Under the provisions of the planning enabling act (chapter 36.70 RCW), may a board of county commissioners amend a zoning ordinance pursuant to an application for rezoning, contrary to the recommendation of the planning commission, without conducting a public hearing?

            We answer your question in the negative.

                                                                     ANALYSIS

            For general reference, AGO 63-64 No. 69 [[to Prosecuting Attorney, Snohomish County on November 18, 1963]], a copy of which is enclosed, contains a fairly comprehensive analysis of county zoning laws with particular emphasis on procedures, including public notices and meetings, which are to be followed in planning under the provisions of the planning enabling act ‑ chapter 36.70 RCW.  As we said at page 3 of that opinion:

            "Zoning regulations result from an exercise  [[Orig. Op. Page 2]] of the county police power and may only be adopted in the interests of the health, safety, morals and general welfare of the people affected.  RCW 36.70.010;Pierce v. King County, 162 Wash. Dec. 319 [[62 Wn.2d 324]](1963).  A fundamental principle in connection with the adoption of zoning regulations is that the procedures set forth in enabling legislation must be followed.  State v. Thomasson, 161 Wash. Dec. 424 [[61 Wn.2d 425]](1963); State ex rel. Kuphal v. Bremerton, 59 Wn.2d 825, 371 P.2d 37 (1962); 8 McQuillin, Municipal Corporations (3rd ed.) §§ 25.249-25.251.  Notice requirements, in particular, must be followed.  Pierce v. King County, 162 Wash. Dec. 319 [[62 Wn.2d 324]], 329 (1963), supra."

            Those sections of the planning enabling act which deal with the zoning ordinances themselves (i.e., the ordinances which adopt "official controls") are RCW 36.70.550, et seq.  Required procedures for the adoption or amendment of these official controls are prescribed as follows:

            RCW 36.70.550:

            "From time to time, the planning agency may, or if so requested by the board shall, cause to be prepared official controls which, when adopted by ordinance by the board, will further the objectives and goals of the comprehensive plan.  The planning agency may also draft such regulations, programs and legislation as may, in its judgment, be required to preserve the integrity of the comprehensive plan and assure its systematic execution, and the planning agency may recommend such plans, regulations, programs and legislation to the board for adoption."

            RCW 36.70.580:

            "Before recommending an official control or amendment to the board for adoption, the commission shall hold at least one public hearing."

             [[Orig. Op. Page 3]]

            RCW 36.70.590:

            "Notice of the time, place and purpose of the hearing shall be given by one publication in a newspaper of general circulation in the county and in the official gazette, if any, of the county at least ten days before the hearing.  The board may prescribe additional methods for providing notice."

            RCW 36.70.600:

            "The recommendation to the board of any official control or amendments thereto by the planning agency shall be by the affirmative vote of not less than a majority of the total members of the commission.  Such approval shall be by a recorded motion which shall incorporate the findings of fact of the commission and the reasons for its action and the motion shall refer expressly to the maps, descriptive and other matters intended by the commission to constitute the plan, or amendment, addition or extension thereto.  The indication of approval by the commission shall be recorded on the map and descriptive matter by the signatures of the chairman and the secretary of the commission and of such others as the commission in its rules may designate."

            RCW 36.70.610:

            "A copy of any official control or amendment recommended pursuant to RCW 36.70.550, 36.70.560, 36.70.570 and 36.70.580 shall be submitted to the board not later than fourteen days following the action by the commission and shall be accompanied by the motion of the planning agency approving the same, together with a statement setting forth the factors considered at the hearing, and analysis of findings considered by the commission to be controlling."

             [[Orig. Op. Page 4]]

            RCW 36.70.620:

            "Upon receipt of any recommended official control or amendment thereto, the board shall at its next regular public meeting set the date for a public meeting where it may, by ordinance, adopt or reject the official control or amendment."

            RCW 36.70.630:

            "If after considering the matter at a public meeting as provided in RCW 36.70.620the board deems a change in the recommendations of the planning agency to be necessary, the change shall not be incorporated in the recommended control until the board shall conduct its own public hearing, giving notice thereof as provided in RCW 36.70.590, and it shall adopt its own findings of fact and statement setting forth the factors considered at the hearing and its own analysis of findings considered by it to be controlling."  (Emphasis supplied.)

            RCW 36.70.640:

            "When it deems it to be for the public interest, the board may initiate consideration of an ordinance establishing an official control, or amendments to an existing official control, including those specified in RCW 36.70.560.  The board shall first refer the proposed official control or amendment to the planning agency for report which shall, thereafter, be considered and processedin the same manner as that set forth in RCW 36.70.630 regarding a change in the recommendation of the planning agency."  (Emphasis supplied.)

            With regard to your specific question, the language of these statutes lacks some clarity and might be regarded as ambiguous.  No single section says that after the planning agency has recommended the denial of an application to amend a previously adopted zoning ordinance, the board must hold a public hearing before proceeding to amend the same ordinance on its own initiative.  However, when viewed from the  [[Orig. Op. Page 5]] standpoint of the applicable rules of statutory construction, we consider the legislative intention manifested by these statutes to be very clear on that point.

            The first such rule to be observed is that all statutes or parts of statutes on the same subject must be read together in order to ascertain the legislature's intention.  State v. Houck, 32 Wn.2d 681, 203 P.2d 693 (1949).  Secondly, the over-all legislative purpose of the statutes must be considered and effectuated in so far as possible.  State v. Lee, 62 Wn.2d 228, 382 P.2d 491 (1963); Alderwood Water Dist. v. Pope & Talbot, 62 Wn.2d 319, 382 P.2d 639 (1963).  A third and connected principle is that absurd results should be avoided if it is possible to do so without doing a violence to the express language of the statute.  Alderwood Water Dist. v. Pope & Talbot,supra.

            It is our opinion that the above statutes when read together, particularly RCW 36.70.620, 36.70.630 and 36.70.640, absolutely require public notice to be given by the board of county commissioners before the adoption or amendment of any zoning ordinance, either on the recommendation of the planning commission, or against such recommendation, or on the board's own motion.  As we said in AGO 63-64 No. 69, supra, at page 6:

            ". . .  The purpose of the several required public hearings is to provide opportunity for members of the public to present all possible objections and opinions to both the planning commission and (before official controls are adopted) the board of county commissioners.  In view of the fact that zoning regulations are a serious impairment of the right to use and enjoy property (Pierce v. King County, supra), the notice provisions of chapter 36.70 RCW must be interpreted as mandatory."

            We call your attention particularly to the following language of RCW 36.70.630, supra:

            "If after considering the matter at a public meeting as provided in RCW 36.70.620 the board deems a change in the recommendations of the planning agency to be necessary, the  [[Orig. Op. Page 6]] change shall not be incorporated in the recommended control until the board shall conduct its own public hearing, . . ."

            While that language speaks of a change contemplated in a recommended control, we cannot regard the phrase "recommended control" in any technical sense so as to allow escape from the public notice and hearing requirements merely because the subject matter of the planning commission's recommendation is an existing ordinance rather than a proposed ordinance.  If anything, the public policy reflected by the above quoted statutes should be construed to guard even more jealously the right of the public to be heard in the former case.  Otherwise, the result would be absurd.  We would be concluding that the legislature intended to require notice and hearing on a decision by the board to change a recommended new zoning ordinance; or to initiate its own proposal for a new ordinance or amendment to an existing ordinance; but not to require such notice or hearing if the board's proposal to change an ordinance happens to be made after a recommendation by the planning agency to preserve the status quo.  That result would be manifestly contrary to legislative policy and certainly can be avoided without doing any violence to the statutory language we have quoted.  For ease of reference, we quote again RCW 36.70.640, in pertinent part, as follows:

            "When it deems it to be for the public interest, the board may initiate consideration of . . . amendments to an existing official control, . . .  The board shall first refer the proposed . . . amendment to the planning agency for report which shall, thereafter, be considered and processedin the same manner as that set forth in RCW 36.70.630 regarding a change in the recommendation of the planning agency."  (Emphasis supplied.)

            In our opinion, after a planning commission recommends the denial of an application for rezoning and thus recommends against a change in the existing zoning ordinances, any subsequent proposal by the board of county commissioners to grant the application and change a zoning ordinance must be considered either a "change in the recommendation of the  [[Orig. Op. Page 7]] planning agency" under RCW 36.70.630, or a new proposal by the board under RCW 36.70.640.  In either case, it is mandatory that the board thereupon conduct its own public hearing, following the mandatory provisions of RCW 36.70.630.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

ROBERT F. HAUTH
Assistant Attorney General