JOINT CONSTRUCTION OF GROUP HOME

COUNTIES ‑- HOUSING AUTHORITY ‑- CONTRACTS ‑- JOINT CONSTRUCTION OF GROUP HOME

A county of the first class and a housing authority may contract for the joint construction and/or operation of a group home for the developmentally disabled under chapter 35.82 RCW as amended by chapter 198, § 2, Laws of 1973, 1st Ex. Sess.

                                                                    - - - - - - - - - - - - -

                                                                 January 31, 1974

Honorable James E. Carty
Prosecuting Attorney
Clark County
301 Court House
Vancouver, Washington 98660                                                                                                               Cite as:  AGLO 1974 No. 14

Dear Sir:

            By letter previously acknowledged you have requested our opinion on the following question:

            "May a county of the first class and a housing authority contract for the joint construction and/or operation of a group home for the developmentally disabled under Chapter 35.82 RCW as amednded by Chapter 198, Section 2, Laws of 1973 1st Extraordinary Session?"

            In addition, assuming an affirmative answer to the foregoing question, you have then asked:

            "Would jointly operating agencies have the legal ability to obtain state matching funds under Chapter 71.20 RCW?"

            We answer your first question in the affirmative and respond to your second question in the manner appearing in the analysis below.

                                                                     ANALYSIS

            Question (1):

            By its enactment of § 2, chapter 198, Laws of 1973, 1st Ex. Sess., the legislature added the following new section to chapter 35.82 RCW:

            "Housing authorities of first class counties created under this chapter may establish and operate group homes or halfway houses to serve juveniles released from state juvenile or correctional institutions, or to serve the developmentally disabled as defined in  [[Orig. Op. Page 2]] 42 U.S.C. 2670, 85 Stat. 1316.  Such authorities may contract for the operation of facilities so established, with qualified nonprofit organizations as agent of the authority.

            "Action under this section shall be taken by the authority only after a public hearing as provided by chapter 42.30 RCW.  In exercising this power the authority shall not be empowered to acquire property by eminent domain, and the facilities established shall comply with all zoning, building, fire, and health regulations and procedures applicable in the locality."1/   (Emphasis supplied.)

            From this provision it seems clear that a housing authority in a first class county now has the power, acting by itself, to establish and operate a group home such as is contemplated by your first question.  But by the same token it seems equally clear that this statute does not purport to grant that same power to the county itself, acting either alone or with a housing authority.  Hence, in view of the well-established rule that all counties in this state except those operating under their own charters as provided for in Article XI, § 4 of our state Constitution2/ have only such powers as have been granted to them, expressly or by necessary implication, by the constitution and statutes of the state,3/ we are obliged to look elsewhere for the authority necessary to support an affirmative answer to your first question.

             [[Orig. Op. Page 3]]

            Turning to chapter 35.83 RCW, we find it.  Among the various categories of municipalities or political subdivisions defined as "state bodies" by RCW 35.83.020(3), are counties, regardless of class.  Also defined in this statute is the term "housing projects" which, under subsection (2), means

            ". . . any work or undertaking of a housing authority pursuant to the housing authorities law or any similar work or undertaking of the federal government."

            RCW 35.83.030 then provides, in pertinent part, that:

            "For the purpose of aiding and cooperating in the planning, undertaking, construction or operation ofhousing projects located within the area in which it is authorized to act, any state public body may upon such terms, with or without consideration, as it may determine:

            ". . .

            "(8) Doany and all things, necessary or convenient to aid and cooperate in the planning, undertaking, construction or operation of . . . housing projects;

            ". . .

            "(10) Enter into agreements . . . with a housing authority respecting action to be taken by such state public body pursuant to any of the powers granted by this chapter. . . ."  (Emphasis supplied.)

            Subsection (10) of this statute plainly confers upon a state public body ‑ here a county of the first class ‑ the power to enter into a contract with a housing authority, and subsection (8) confers upon it the power to do any and all thingsnecessary or convenient to aid in the construction or operation of a housing project undertaken by such an authority.  Since the phrase "housing project" is itself defined in RCW 35.83.020(2),supra, to mean "any work or undertaking of a housing authority pursuant to the housing authorities law", it therefore follows that a county of the first class (as a "state public body") may enter into a contract  [[Orig. Op. Page 4]] with a housing authority for the joint construction or operation of any such work or undertaking; and, with the addition of § 2, chapter 198,supra, to the housing authority law ‑ chapter 35.82 RCW ‑ a group home for the developmentally disabled such as is described therein (and in your question) is such a work or undertaking.  For this reason, then, we may answer your first question in the affirmative.4/

            Question (2):

            Your second question assumes that answer and asks:

            "Would jointly operating agencies have the legal ability to obtain state matching funds under Chapter 71.20 RCW?"

            This question, in our opinion, cannot be definitively answered except on the basis of a specific application for funds under chapter 71.20 RCW when, and if, such an application is made to the state department of social and health services under the following provisions of RCW 71.20.080, codifying § 8, chapter 110, Laws of 1967, Ex. Sess.:

            "The state agency responsible for the administration of a state grant to a community board shall review the application from the community board or the board of county commissioners.  The agency may approve such application if it meets the  [[Orig. Op. Page 5]] requirements of this chapter and the rules and regulations promulgated by the agency which establish the eligibility requirements to be met by the applicant in addition to the submission of a plan for coordination of services and for providing a continuum of such services as provided in RCW 71.20.060.  The agency shall develop rules and regulations to assist in determining the amount of the grant to be made to a community board.  These rules and regulations shall take into consideration the population of the area served, the need of the area, and the ability of the community to provide funds for the continuum of care."

            If an application for state funding under this chapter is submitted to the department either by your board of county commissioners or by a community board established by it pursuant to RCW 71.20.040, we will, of course, then be happy to review it in our capacity as legal adviser to that state agency for the purpose of determining the legal eligibility of the facility and operation contemplated by your first question for the financial assistance thus requested.