PROVISION FOR SCHOOL SITES ON PLATS OR SUBDIVISIONS
Chapter 299, Laws of 1955, requires neither that the owner of property to be platted donate land for school purposes, nor that he hold such land available for public purchase; but merely that sites needed for school use be indicated before a proposed plat is approved.
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December 20, 1955
Honorable Hugh H. Evans
Spokane 1, Washington Cite as: AGO 55-57 No. 176
Attention: Mr. Leo J. Driscoll, Civil Deputy
You have requested an opinion from this office concerning the interpretation of RCW 58.16.060, as amended by chapter 299, Laws of 1955, which reads, in part, as follows:
"The city, town, or county authority shall inquire into the public use and interest proposed to be served by the establishment of the plat, subdivision, or dedication. Itshall see that appropriate provision is made in the plat or subdivision for streets and other public ways, parks, playgrounds, sites for schools and school grounds, and shall consider all other facts deemed by it relevant and designed to indicate whether or not the public interest will be served by the platting, subdividing, or dedication. If it finds that the plat, subdivision, or dedication makes appropriate provision for streets and other public ways, parks, playgrounds, sites for school and [[Orig. Op. Page 2]] school grounds, and that the public use and interest will be served by the platting, subdividing, or dedication, then it shall execute its written approval which shall be suitably inscribed on the plat, subdivision, or dedication. * * *" (Emphasis supplied)
With reference to sites for schools and school grounds, you have asked whether the term "appropriate provision" means that a donation of property is required, or whether it means that the owner must merely hold the property available for purchase.
It is our opinion that the statute requires neither alternative, and that property for schools and school grounds may only be acquired from the owner through proceedings in eminent domain.
The answer to the question here raised must depend on the meaning to be given the phrase "appropriate provision" as used in the statute. The suggestion that this phrase requires a donation on the part of the owner of platted property is based on the assumption that schools and school grounds may legally be provided for in the same manner as streets and public ways‑- in other words, that the statute may compel an owner, as a condition to filing his plat, to surrender his right in property designated for school use without receiving compensation therefor.
In the case of streets, it is clear that the city, town or county authority may require that streets be dedicated on any plat or subdivision approved by it. SeeAyres v. City Council of Los Angeles, 34 Cal. 2d 31, 207 P. (2d) 1, 11 A.L.R. (2d) 53; Newton v. American Security Co., 201 Ark. 943, 148 S.W. (2d) 311. It is said in the annotation at A.L.R. (2d) 524 at 537:
"The contention that conditions imposed upon approval of a proposed subdivision, plat or map are invalid as constituting a veiled attempt to exercise the power of eminent domain has, under the facts and circumstances disclosed in the particular cases, been consistently rejected."
[[Orig. Op. Page 3]]
The reasoning of these cases is that it is the property owner who is seeking to acquire the advantages of lot subdivision, and that upon him rests the duty of compliance with reasonable conditions for design, dedication, improvement, and restrictive use of the land, so as to conform with the safety and general welfare of other lot owners and of the public.
It might be logically possible to extend this reasoning to justify the forcing of a property owner to donate land for school purposes as well as for streets. Our research, however, has disclosed no case in which this has been sanctioned. Further, we call attention to the language of Metzenbaum on the Law of Zoning (Baker, Voorhis and Company, New York, 1930) at page 48:
"Because the exercise of the police power does not require compensation to be made to the owner of the property affected, that power has occasionally been attempted to be used as a cover for, and as a substitute in place of, the use of eminent domain, for the purpose of avoiding the necessity of paying compensation to the owner.
"It is to be noted, however, that the courts have quickly resented any such practice and have sternly frowned upon any such method.
"When a case or situation involves an actual 'taking' of property or a genuine 'depriving' of a full or partial interest in property, and when such 'depriving' is for some specific improvement or project, the courts have promptly removed the false label of 'Police Power' and have in place thereof, affixed the true and appropriate name of 'Eminent Domain', thus insuring to the owner, the compensation to which he may be legally and constitutionally entitled."
It will be seen that if the statute under consideration is intended to extend the rule pertaining to streets and public ways to schools and school grounds, a serious constitutional question may well be presented, to-wit: would this amount to the taking of property without due process of law?
[[Orig. Op. Page 4]]
We are not of the view, however, that the language of the statute requires us to attempt to resolve this question. It does not expressly require that the owner of a plat donate land for school purposes, nor even that he set aside such land for future purchase at some indeterminate date. It merely states that the city, town, or county authority
"* * * shall see that appropriate provision is made in the plat or subdivision for streets and other public ways, parks, playgrounds, sites for schools and school grounds, * * *."
It is our opinion that this must be interpreted to mean "appropriate provision within the framework of existing laws." Under existing laws, the dedication of property for street use may be made a condition of the filing of a plat. Under no existing law with which we are familiar, can the dedication of property for school use be made such a condition.
What then, is the meaning of the phrase "appropriate provision" as applied to schools and school grounds? In our opinion, it only means that the city, town or county authority must consider the school needs of the area concerned at the time it approves the plat or subdivision. Where it finds that a school is needed, this should be indicated before the plat is approved. But the owner of the property cannot be compelled to donate land for such a school or to hold it in reserve for future purchase. It is our opinion that this property can only be acquired from him by the ordinary process of eminent domain.
We hope the foregoing analysis will prove helpful.
Very truly yours,
JOHN S. ROBINSON
Assistant Attorney General