Bob Ferguson
Other LanguagesAGLO 1970 No. 117 -
Attorney General Slade Gorton
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September 2, 1970
Honorable James P. McNally
Prosecuting Attorney
Pend Oreille County
Newport, Washington 99156
Cite as: AGLO 1970 No. 117
Dear Sir:
We are writing in response to your recent letter posing a question as to the extent of the authority of a board of county commissioners to require a subdivider of land to develop and provide public access areas, together with appropriate facilities thereon, as part of a subdivision fronting upon a lake, river or similar waterway.
ANALYSIS
We believe that the statute which is determinative of your question is RCW 58.17.110, which deals with the approval of proposed subdivision plats by the legislative bodies of cities, towns or counties. This statute, which codifies § 11, chapter 271, Laws of 1969, Ex. Sess., sets forth the standards which are to govern these legislative bodies in reviewing and approving proposed subdivision plats within their respective jurisdictions, as follows:
"The city, town, or county legislative body shall inquire into the public use and interest proposed to be served by the establishment of the subdivision and dedication. It shall determine if appropriate provisions are made in the subdivision for, but not limited to, drainage ways, streets, alleys, other public ways, water supplies, sanitary wastes, parks, playgrounds, sites for schools and schoolgrounds, and shall consider all other relevant facts and determine whether the public interest will be served by the subdivision and dedication. If it finds that the plat makes appropriate provisions for the public health, safety and general welfare and for such drainage ways, streets, alleys, other public ways, water supplies, sanitary wastes, parks, playgrounds, sites for schools and schoolgrounds and that the public use and interest will be served by the platting of such subdivision, then it shall be approved. Dedication of land to any [[Orig. Op. Page 2]] public body shall be clearly shown on the final plat. The legislative body shall not as a condition to the approval of any plat require a release from damages to be procured from other property owners."
Under this statute, the question of what types of facilities would be required in order to cause a given plat to make "appropriate provisions for the public health, safety and general welfare" ‑ as well as for such specific facilities as, inter alia,
". . . streets, alleys, other public ways, . . . parks, playgrounds . . ."
is a factual question which the legislature has stated should be answered by each city, town or county legislative body upon its review of the particular subdivision plat which is before it. If the legislative body finds that the plat does make appropriate provision for these various things, then the plat is to be approved; otherwise, it should not be approved until such time as the legislative body concerned is satisfied that the plat has been revised to an extent sufficient to meet that body's objections to its original provisions.
Speaking generally in terms of the exercise of this authority, we would regard it as only being subject to the same limitation which applies to any exercise of a delegated discretionary function by a state agency or a municipality; namely, that it act reasonably, under all of the circumstances, and not arbitrarily or capriciously. And, of course, the question of whether a certain response by a board of county commissioners or other municipal legislative body to a given platting proposal would be regarded as reasonable ‑ or as arbitrary or capricious ‑ is a question which would have to be decided by the courts, in a specific case, based upon all of the factual evidence which the legislative body in question relied upon in making its determination with respect to the matter.
In so far as the particular subject of public access to lakes, rivers, or streams is concerned, it would appear to us proper for a municipal legislative body to require a subdivider to provide and develop "appropriate" facilities of this type either as an adjunct to such parks or playgrounds as are provided for in the plat ‑ or, alternatively, as an extension of such streets, [[Orig. Op. Page 3]] alleys or other public ways as are thus provided for. With regard to the second of these approaches, we are enclosing, and would call your attention to, AGO 61-62 No. 182 [[to Prosecuting Attorney, King County on December 12, 1962]]in which we concluded that a public boat launching ramp at the waterfront end of a county road or city street could properly be regarded as a part of that road or street, saying:
"Public boat launching ramps are usually formed by grading and surfacing an area so that boat trailers and other vehicles can be driven up to and into the water. They look like roads and are used by motor vehicles designed for road use. They are open to all who have occasion to use them. The fact that a road benefits particular persons or classes of persons more than others does not make it any less a public road, if all persons have the right to use it. State ex rel. O-W R. & N. Co. v. Walla Walla Co., 5 Wn.2d 95, 104 P.2d 764 (1940)."
Therefore, subject to the limitation of "reasonableness" as above indicated, it would be our opinion that a board of county commissioners or other municipal legislative body acting under RCW 58.17.110, supra, may require a subdivider of land fronting on a lake, river or other similar waterway to develop and provide public access areas, together with "appropriate facilities" thereon, as a condition to its approval of the plat.
We trust the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Assistant Attorney General