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AGLO 1976 No. 75 - December 17, 1976
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Slade Gorton | 1969-1980 | Attorney General of Washington

CITIES AND TOWNS ‑- LANDS ‑- ANNEXATION ‑- APPLICABILITY OF LAND DEVELOPMENT ACT TO LANDS ANNEXED SINCE 1973

The exemption contained in § 3(1)(f) of the land development act of 1973 (chapter 12, Laws of 1973, 1st Ex. Sess.) now codified as chapter 58.19 RCW, does not apply to a lot or parcel of land which was not situated within an incorporated city or town prior to January 1, 1974 (the effective date of the act) but which has since become a part of such a municipality through annexation.

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                                                               December 17, 1976

Honorable Andrew C. Braff
Prosecuting Attorney
Stevens County Court House
Colville, Washington 99114                                                                                                               Cite as:  AGLO 1976 No. 75

Dear Sir:

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

            Does the exemption contained in § 3 (1)(f) of the land development act of 1973 (chapter 12, Laws of 1973, 1st Ex. Sess.), now codified as chapter 58.19 RCW, apply to a lot or parcel of land which was not situated within an incorporated city or town prior to January 1, 1974, (the effective date of the act) but which has since become a part of such a municipality through annexation?

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

                                                                     ANALYSIS

            The land development act of 1973, which was enacted pursuant to chapter 12, Laws of 1973, 1st Ex. Sess., and is now codified as chapter 58.19 RCW, became effective on January 1, 1974.  See, § 34, chapter 12,supra.  In general terms this act, which is administered by the state department of motor vehicles, is a disclosure law relating to the disposition of developed lands throughout our state, with the term "development" or "developed lands" being defined by § 2(4)1/ to mean:

            ". . . land which is divided or is proposed to be divided for the purpose of disposition into ten or more lots, parcels, or units (excluding interests in camping clubs regulated under chapter 19.105 RCW) and any other land whether contiguous or not, if ten or more lots, parcels, units, or interests are offered as a part of a common promotional plan of advertising and sale."

             [[Orig. Op. Page 2]]

            However, § 3 of the act, now codified as RCW 58.19.030, lists a number of exemptions from the law and it is one of those exemptions to which your present question pertains.  Insofar as is here material, this section of the act says that:

            "(1) Unless the method of disposition is adopted for the purpose of evasion of this chapter, the provisions of this chapter shall not apply to land and offers or dispositions:

            ". . .

            "(f) Any lot, parcel, unit or interest if the development is located within an area incorporated prior to the effective date of this 1973 act [January 1, 1974];

            ". . ."

            As we understand it, your question specifically relates to a proposed development of land within an area which has recently been annexed to the city of Colville, a city which, itself, was incorporated long prior to January 1, 1974.  The annexation which has given rise to your question, however, occurred subsequent to that critical date.

            It is our opinion that the exemption contained in RCW 58.19.030(1)(f),supra, is only applicable to land which was already situated within an incorporated municipality when the land development act took effect on January 1, 1974.  Therefore, that exemption does not encompass a tract or parcel of land which is situated within an area that has only since become a part of an incorporated municipality ‑ either through the annexation process (as in this case) or as a consequence of the incorporation of a new city or town.

            In so concluding we readily acknowledge that RCW 58.19.030(1)(f),supra, is not the most artfully drafted statute we have ever read.  Its purpose, however, seems merely to have been that of qualifiedly exempting those developments of land areas already situated within an incorporated city or town, as of the effective date of the act, from its regulatory provisions.  The legislature did not, however, then go on to extend that same exemption to other land areas which mightlater become component parts of an incorporated municipality.  Moreover, a logical explanation for this distinction is that most lands already in a city or town as of the effective date of the act were  [[Orig. Op. Page 3]] already developed whereas most of the undeveloped lands at which the law was aimed were in rural areas ‑ some of which, however, might later be annexed.  Apparently the legislature did not want to allow a new developer to avoid the law by the mere device of obtaining annexation.

            If, instead of exempting those developments located within "an area" incorporated prior to January 1, 1974, the legislature had utilized the phrase "a city" so as to have caused the exemption here in issue to apply ". . . if the development is located within a city incorporated prior to January 1, 1974," a different result might, perhaps, be supportable.  Even then, however, whatever ambiguity that alternative language might have produced would, under established principles of statutory construction, be more properly resolvable in accordance with the conclusion which we here reach.

            First, of course, it is a well-settled rule of statutory construction that exceptions to a legislative enactment must be strictly construed.  Hall v. Corp. Catholic Archbishop, 80 Wn.2d 797, 498 P.2d 844 (1972).  One who claims the benefit of an exception to a legislative enactment, therefore, has the burden of bringing himself clearly within it and must prove every fact essential to invocation of the exception.  Thus, to the extent that RCW 58.19.030(1)(f), supra, might be viewed as being ambiguous with respect to your question, any such ambiguity must be resolved in favor of an application of the law involved and against the applicability of any exemption contained therein.

            In addition, there is another principle of statutory construction to be noted; namely, the well established doctrine of administrative construction which is exemplified by such cases as Bradley v. Dept. of Labor & Ind., 52 Wn.2d 780, 329 P.2d 196 (1958).  As stated by the court in that case, at pp. 786-7:

            ". . .  Where a statute is ambiguous, construction placed upon it by the officer or department charged with its administration is not binding on the courts but is entitled to considerable weight in determining the legislative intention, and the persuasive force of such interpretation is strengthened when the legislature, by its failure to amend or by amending some other particular  [[Orig. Op. Page 4]] without repudiating the administrative construction, silently acquiesces in the administrative interpretation.  White v. State, 49 Wn.2d 716, 306 P.2d 230."

            In this instance we are informed that our present interpretation of RCW 58.19.030(1)(f) (i.e., that the exemption does not apply to a development not already located in an incorporated area prior to January 1, 1974) is in complete accordance with the administrative construction which has consistently been given to that statute by the department of motor vehicles, administrator of the land development act, during the several years which have now elapsed since it first became effective.  And, as you know, our legislature, in the meantime, met on several occasions without amending the statute.

            Accordingly, for the reasons above stated, we answer your question, as above paraphrased, in the negative.  We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

WILLIAM L. WILLIAMS
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/RCW 58.19.020(4).

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