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AGLO 1975 No. 72 - August 19, 1975
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Slade Gorton | 1969-1980 | Attorney General of Washington

COUNTIES ‑- CITIES AND TOWNS ‑- LOCAL REGULATION OF NOISE

Procedures to be followed by a county or city in adopting local noise controls differing from those established by the state department of ecology under chapter 183, Laws of 1974, 1st Ex. Sess.

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                                                                 August 19, 1975

Honorable Sam C. Guess
State Senator, Sixth District
W. 408 33rd Avenue
Spokane, Washington 99203                                                                                                               Cite as:  AGLO 1975 No. 72

Dear Sir:

            By recent letter you have made reference to so much of § 6(4), chapter 183, Laws of 1974, 1st Ex. Sess., as authorizes local governments to impose controls upon noise which will differ from those adopted by the state department of ecology under this 1974 noise abatement and control legislation.  You have then asked for our opinion on the following four questions:

            "1. Who must make the finding of special conditions?

            "2. Must the finding be a part of the ordinance, the environmental impact statement, or a separate document?

            "3. If there is no finding of special conditions, can local noise limitations differ from those adopted by the Department of Ecology?

            "4. If the local government is required to make the finding of special conditions, is the DOE required to approve the adequacy and accuracy of the finding?"

            We answer these questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            Chapter 183, Laws of 1974, 1st Ex. Sess., now codified as chapter 70.107 RCW, provides for the regulation and control of "noise" ‑ defined in RCW 70.107.020(4) as

            ". . . the intensity, duration and character of sounds from any and all sources."

             [[Orig. Op. Page 2]]   Basic responsibility for the adoption and enforcement of the regulations contemplated by the act is vested in the state department of ecology.  See, RCW 70.107.030.  However, RCW 70.107.060(4), which codifies the subsection of the act which you have cited in your letter, qualifies the exclusivity of the department's noise control standards to a limited extent.  The full text of this subsection reads as follows:

            "(4) Standards and other control measures adopted by the department under this chapter shall be exclusive except as hereinafter provided.  A local government may impose limits or control sources differing from those adopted or controlled by the department upon a finding that such requirements are necessitated by special conditions.  No such noise limiting requirements of local government shall be valid unless first approved by the department.  If disapproved the local government may appeal the decision to the pollution control hearings board which shall decide the appeal on the basis of the provisions of this chapter, and the applicable regulations, together with such briefs, testimony, and oral argument as the hearings board in its discretion may require.  In the determination of whether to grant any such approval, the department shall give consideration to the reasonableness and practicability of compliance with particular attention to the situation of stationary sources, the noise producing operations of which are conducted at or near jurisdictional boundaries."

            Question (1):

            The term "local government", as used in the above quoted provisions of § 6(4), is defined in § 2(3) of chapter 183, supra, to mean a ". . . county or city government or any combination of the two."  Accordingly, since the function contemplated by § 6(4) is obviously legislative in character, it follows that the particular body within a local government which is to make the requisite findings and provide for the alternative noise controls is the legislative branch of that particular local governmental entity; i.e., a city council, city commission, county council or county commission, as the case may be.

             [[Orig. Op. Page 3]]   Clearly, the statute requires, as a precondition to the adoption of different noise controls, that a finding be made ". . . that such requirements are necessitated by special conditions. . . ."  Thus, it will be the legislative body of the local government in question which will be required to make this finding in connection with its adoption of locally differing noise control regulations.

            Question (2):

            However, in answer to your second question, the statute does not specify that this finding must, in all cases, be actually made a part of the ordinance.  Thus, the finding could, instead, be made in an accompanying resolution or, conceivably, in whatever environmental impact statement is prepared by the local government, under the state environmental policy act,1/ in connection with its adoption of the subject's noise control ordinance.

            Question (3):

            On the other hand, because such a special finding is expressly declared to be a condition precedent to the adoption of a differing local noise control regulation, your third question must be answered in the negative.  If there is no finding of special conditions, local noise limitations may not differ from those adopted by the state department of ecology in accordance with § 3(1) of chapter 183, supra.

            Question (4):

            As far as your fourth question is concerned, RCW 70.107.060(4),supra, expressly states that:

             [[Orig. Op. Page 4]] ". . .  No such noise limiting requirements of local government shall be valid unless first approved by the department [of ecology] . . ."

            While this provision does not specifically hone in the local government's underlying "findings of special conditions" it obviously does put the department in a position where, in a given case, it could possibly disapprove of a local governmental modification because of the inadequacy, in that case, of the finding upon which the local action was purportedly based.

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

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/See, chapter RCW 43.21C.   We would not, however, generally recommend this particular procedure because it would seem to be somewhat inconsistent with what we would ordinarily view to be the essential function of an environmental impact statement under that law.  The statement itself is not to be an expression of governmental policy but, instead, is simply to focus upon the environmental consequences of any such policy decisions by a state or local governmental body.

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