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AGO 1955 No. 112 - July 12, 1955
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Don Eastvold | 1953-1956 | Attorney General of Washington

ZONING ‑- COUNTIES ‑- PLANNING COMMISSIONS

A city or county may not enact restrictive zoning ordinances or resolutions without appointing a planning commission and complying with statutory procedure.

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                                                                    July 12, 1955

Honorable Hewitt A. Henry
Prosecuting Attorney
Thurston County Court House
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 112

Dear Sir:

            We have your letter of June 27, 1955, in which you advise that the board of county commissioners of Thurston county contemplates zoning for residence use only a tract of land lying adjacent to the North Thurston High School.  You request the opinion of this office on the following question:

            Is it possible for a city or county to regulate and restrict the location and use of buildings, structures and lands for residence, trade, industry and other purposes without first complying with the terms of chapter 35.63 RCW by appointing a planning commission as provided therein?

            Our opinion is in the negative.

                                                                     ANALYSIS

            RCW 35.63.020 provides in part as follows:

            "If any council or board desires to avail itself of the powers conferred by this chapter it shall create a city or county planning commission  [[Orig. Op. Page 2]] consisting of from three to twelve members to be appointed by the mayor or chairman of the municipality and confirmed by the council or board:  * * *"

            RCW 35.63.080 provides in part:

            "The council or board may provide for the preparation by its commission and the adoption and enforcement of coordinated plans for the physical development of the municipality.  For this purpose the council or board, in such measure as is deemed reasonably necessary or requisite in the interest of health, safety, morals and the general welfare,upon recommendation by its commission, by ordinance or resolution may regulate and restrict the location and the use of buildings, structures and land for residence, trade, industrial and other purposes; the height, number of stories, size, construction and design of buildings and other structures; the size of yards, courts and other open spaces on the lot or tract; the density of population; the set-back of buildings along highways, parks or public water frontages; and the subdivision and development of land.  * * *" (Emphasis supplied)

            RCW 35.63.090 provides that zoning regulations shall be worked out as part of the comprehensive plan prepared by the commission.  RCW 35.63.100 authorizes a city council or board of county commissioners, on recommendation of its commission, to divide the municipality or part of it into restrictive zones.  Notice and hearing are required.  Article XI, § 11 of the state constitution provides as follows:

            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."

             [[Orig. Op. Page 3]]

            Where there is a zoning statute the powers of a municipality to enact zoning regulations must be determined by that statute.  8 McQuillin, Municipal Corporations, 67, Zoning § 25.38.  The general rule is that the enactment of a zoning ordinance must strictly pursue the procedure provided by the statute enabling the municipality to zone.  Johnson v. City of Huntsville, 249 Ala. 36, 29 So. (2d) 342.  See alsoGannett v. Cool, Iowa 61, N.W. (2d) 703; Marren v. Gamble, N.C. 75 S.E. (2d) 880; and Johnston v. Board of Supervisors of Marin County, Calif. 187 P. (2d) 686.  In Schofield v. City of Los Angeles, 7 P. (2d) 1076, it was held that a zoning ordinance passed by the City of Los Angeles without being submitted to the city planning commission was void.

            The power to zone is derived from the general police power and as such is subject to limitations.  Zoning restrictions limit the use to which private property may be devoted.  They must bear a reasonable and substantial relation to the public welfare.  Legitimate purposes justifying zoning restrictions have been spelled out by RCW 35.63.090.  A failure to take these purposes into consideration at a public hearing before the county planning commission as required by RCW 35.63.100 would in our opinion invalidate the proposed restrictive zoning resolution.

            We hope the foregoing analysis will prove helpful.

Very truly yours,

DON EASTVOLD
Attorney General

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