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AGLO 1977 No. 56 - December 12, 1977
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Slade Gorton | 1969-1980 | Attorney General of Washington

COUNTIES ‑- CITIES AND TOWNS ‑- ZONING CODES ‑- STATE BUILDING CODE ‑- APPLICABILITY TO STATE AGENCIES

A city, town or county may not amend the state building code as it applies within its jurisdiction so as to require state agencies to comply with local zoning or other land use controls as a condition precedent to receiving a local building permit.

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                                                               December 12, 1977

The Honorable Alan Thompson
State Representative, 18th Dist.
112 Pleasant Hill Lane
Kelso, Washington 98826                                                                                                               Cite as:  AGLO 1977 No. 56

Dear Representative Thompson:

            By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:

            May a city, town or county amend the state building code as it applies within its jurisdiction, in accordance with RCW 19.27.040, so as to require state agencies to comply with local zoning or other land use controls as a condition precedent to receiving a local building permit?

            We answer your question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            As you know, the general question of whether a state agency, in using state‑owned land for a given purpose falling within the scope of its legal authority, is required to  [[Orig. Op. Page 2]] comply with the provisions of a local (county or city) zoning code has been the subject of numerous prior opinions of this office.  See,e.g., our opinions of August 30, 1913 to the state adjutant general; December 28, 1945 to the Commissioner of Public Lands [[to Otto A. Case]]; February 28, 1947 [[to Cliff Yelle, AGO 47-48-17E)]]to the State Auditor, and, most recently, AGLO 1976 No. 72 [[to Ralph W. Larson, Director, Department of Game, on November 24, 1976, an Informal Opinion, AIR-76572]], copy enclosed.  Without exception, our answer in each case has been in the negative, principally on the basis of reasoning contained in the oft-cited case of Kentucky Institution for Blind v. Louisville, 123 Ky. 767, 97 S.W. 402 (1906) where the court ruled as follows:

            ". . .  The principle is that the state, when creating municipal governments, does not cede to them any control of the state's property situated within them, nor over any property which the state has authorized another body or power to control.  The municipal government is but an agent of the state‑- not an independent body.  It governs in the limited manner and territory that is expressly or by necessary implication granted to it by the state.  It is competent for the state to retain to itself some part of the government even within the municipality, which it will exercise directly, or through the medium of other selected and more suitable instrumentalities. . . ."1/

             Moreover, in another recent opinion, AGLO 1974 No. 106 [[to Keith A. Angier, Director, Department of General Administration, on December 30, 1974, an Informal Opinion, AIR-74606]](copy enclosed) we specifically considered, but rejected, an argument to the effect that the legislature's enactment, in 1974, of what is commonly referred to as the "state building code,"2/ had somehow altered the rule.  There,  [[Orig. Op. Page 3]] however, our focus was mainly upon § 9 of the state code, since codified as RCW 19.27.090, which provides that:

            "Local land use and zoning requirements, building setbacks, side and rear-yard requirements, site developments, property line requirements, subdivision requirements, and local fire zones are specifically reserved to local jurisdictions notwithstanding any other provision of this 1974 act."

            Thus, in view of the applicable legal principles enunciated in our earlier opinions,supra, we were able rather readily to dispose of the argument which was then presented to us, saying, at p. 7 of AGLO 1974 No. 16 [[AGLO 1974 No. 106]]:

            ". . .

            "In light of the fact that § 9 appears to be nothing more than an attempt on the part of the legislature to preserve the status quo with respect to zoning, etc., and since it does not specifically make the state subject to local zoning, etc., it is our opinion that the legislature should not be presumed, by that act, to have placed state government under the control of local governments with respect to the activities set forth therein. . . ."

            By your letter, on the other hand, you have asked us to consider the potential legal ramifications of another section of the state building code; namely, § 4, now codified as RCW 19.27.040, which reads, in material part, as follows:

            "On and after January 1, 1975, the governing body of each city, town or county is authorized to amend the state building code as it applies within its jurisdiction in all such respects as shall be not less than the minimum performance standards and objectives enumerated in RCW 19.27.020, including, the authority to adopt any subsequent revisions to the codes in RCW 19.27.030(1), (2), (3), and (4).

            ". . ."

             [[Orig. Op. Page 4]]

            The question, as we have paraphrased it, is whether a city, town or county may amend the state building code as it applies within its jurisdiction, in accordance with RCW 19.27.040, supra, so as to require state agencies to comply with local zoning or other land use controls as a condition precedent to receiving a building permit.  In addressing this question, we are to be guided by the applicable rules of statutory construction ‑ and in this case the principles which seem to us to be particularly pertinent are as recently set forth in Hartman v. State Game Comm'n, 85 Wn.2d 176, 532 P.2d 614 (1975), as follows:

            ". . .

            "Our essential object, in interpreting the meaning of . . . [statute], is to ascertain and give effect to the intent of the legislature, and we must look to the statutory context as a whole to derive legislative intent.  Amburn v. Daly, 81 Wn.2d 241, 501 P.2d 178 (1972).  Where the legislature prefaces an enactment with a statement of purpose such as . . . [statute], that declaration, although without operative force in itself, nevertheless serves as an important guide in understanding the intended effect of operative sections.  State ex rel. Berry v. Superior Court, 92 Wash. 16, 159 P.92 (1916);Whatcom County v. Langlie, 40 Wn.2d 855, 246 P.2d 836 (1952).

            ". . ."3/

             As above indicated, RCW 19.27.040 originated as § 4 of the state building code act.  Section 2 of that same act, now RCW 19.27.020, contained the following preamble:

            "The purpose of this chapter is to provide building codes throughout the state.  This chapter is designed to effectuate the following purposes, objectives and standards:

            "(1) To promote the health, safety and welfare of the occupants or users of buildings and structures and the general public.

             [[Orig. Op. Page 5]]

            "(2) To require minimum performance standards and requirements for construction and construction materials, consistent with accepted standards of engineering, fire and life safety.

            "(3) To require standards and requirements in terms of performance and nationally accepted standards.

            "(4) To permit the use of modern technical methods, devices and improvements.

            "(5) To eliminate restrictive, obsolete, conflicting, duplicating and unnecessary regulations and requirements which could unnecessarily increase construction costs or retard the use of new materials and methods of installation or provide unwarranted preferential treatment to types or classes of materials or products or methods of construction.

            "(6) To provide for standards and specifications for making buildings and facilities accessible to and usable by physically handicapped persons.

            "(7) To consolidate within each authorized enforcement jurisdiction, the administration and enforcement of building codes."

            Clearly, the stated purposes and objectives of the code express an intention on the part of the legislature that building standards throughout the state be maintained at a designated minimum level.  And, in turn, it is ". . . the minimum performance standards and objectives enumerated in RCW 19.27.020, . . ." to which reference is made in RCW 19.27.040,supra, insofar as local (city or county) amendments to the state building code are concerned.  Those purposes, objectives and standards, however, manifest no expression of concern by the legislature for compliance with local zoning or other land use controls.  And furthermore, as earlier explained, the only reference to local zoning or land use controls which does appear in the state building code ‑ i.e., in § 9 (RCW 19.27.090), supra ‑ has previously been construed by this office ". . . to be nothing more than an attempt on the part of the legislature to preserve the status quo with respect to zoning, . . ."4/   Therefore, in direct answer to your question it is our considered opinion  [[Orig. Op. Page 6]] that any attempt by a local governmental unit to amend the state building code, as it applies within its jurisdiction, so as to require state agencies to comply with local zoning or other land use controls as a condition precedent to receiving a building permit would be beyond the scope of the amendatory power granted by RCW 19.27.040, supra, and, therefore, void.  We thus answer your question, as above indicated, in the negative.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

RICHARD A. HEATH
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Other cases to the same effect include Hall v. City of Taft, 47 C.2d 177, 302 P.2d 574 (1956);Davidson County v. Harmon, 200 Tenn. 575, 292 S.W.2d 777 (1956);City of Charleston v. Southeastern Con. Co., 134 W.Va. 666, 64 S.E.2d 676 (1950); andMilwaukee v. McGregor, 140 Wis. 35, 121 N.W. 642 (1909); see also, Zoning Regulations of College Use, 64 A.L.R.3d 1138, 1145 and cases cited therein.  This principle, however, is not applicable with respect to the legal relationship between one local governmental unit and another.  And thus, inEdmonds Sch. Dist. v. Mountlake, 77 Wn.2d 609, 465 P.2d 177 (1970), the court held that a public school district is required to comply with a city's zoning and building codes even in the construction of school facilities on district owned land.

2/Chapter 96, Laws of 1974, 3rd Ex. Sess., now codified as chapter 19.27 RCW.

3/85 Wn.2d, supra, at 179.

4/AGLO 1974 No. 106 [[to Keigh A. Angier, Director, Department of General Administration, on December 30, 1974, an Informal Opinion, AIR-74606]], supra, at p. 7.

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