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AGLO 1979 No. 13 - March 06, 1979
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

COUNTIES ‑- CITIES AND TOWNS ‑- ZONING ‑- POLICE POWER ‑- REGULATION OF CONDOMINIUM DEVELOPMENTS

The provisions of RCW 64.32.110, a section of the horizontal property regimes act (condominiums) of 1963, have no effect on local police power regulations which do not relate to zoning (e.g., building codes) ‑- as distinguished from the pertinent provisions of local zoning codes themselves.

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                                                                   March 6, 1979

Honorable Frank J. Warnke
State Representative, 30th Dist.
302 House Office Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1979 No. 13

Dear Sir:

            BY recent letter you directed our attention to RCW 64.32.110, a section of the horizontal property regimes act (condominiums) of 19631/which reads as follows:

            "Local ordinances, resolutions, or laws relating to zoning shall be construed to treat like structures, lots, or parcels in like manner regardless of whether the ownership thereof is divided by sale of apartments under this chapter rather than by lease of apartments."

            You then posed a number of questions‑-all of which relate, however, to the effect of this statute on the ability of a county or city to regulate condominium developments in one way or another.  We will state those questions, along with our answers, within the body of our analysis below.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Question (1):

            Threshold, and basic, issue raised is whether RCW 64.32.110, supra, has any effect on local police power regulations which do not relate to zoning (e.g., building codes)‑-as distinguished from the pertinent provisions of local zoning codes themselves.

            To this we respond in the negative.  As we read it, the phrase "relating to zoning" modifies all that precedes it in the statute.  Thus, RCW 64.32.110 only involves local ordinances, resolutions or laws relating to zoning;i.e., land use regulations.  What the statute says is that such local land use regulations

            ". . . shall be construed to treat like structures, lots, or parcels in like manner regardless of whether the ownership thereof is divided by sale of apartments under this chapter rather than by lease of apartments."

            From the foregoing response to your first question we would, in turn, answer your remaining questions as follows:

            Question (2):

            "May a county or city use its general nonzoning police powers to distinguish between condominiums and noncondominiums by regulating thenew construction of condominiums in a different manner than the new construction of noncondominiums used for similar purposes?"

            Presumably, you here have reference to local building codes rather than zoning ordinances.  In accordance with our answer to question (1), RCW 64.32.110 imposes no restraint upon county or city building codes.

            Question (3):

            "May a county or city use its general nonzoning police powers to distinguish between condominiums and noncondominiums by regulating theconversion of existing noncondominiums to condominiums and not regulating the conversion of existing condominiums to noncondominiums?"

             [[Orig. Op. Page 3]]

            Again, RCW 64.32.110 is inapplicable.  As far as the question itself is concerned, the ability of a county or city, in the use of its general nonzoning police powers, to regulate the conversion of existing noncondominiums to condominiums has not statutorily been made dependent upon the same county or city's simultaneous regulation of the conversion of existing condominiums to noncondominiums.

            Question (4):

            "Would RCW 64.32.110, or chapter 64.32 RCW in general, prohibit a zoning or other ordinance providing that no more than a certain percentage of existing noncondominiums could be converted to condominiums, and similarly that no more than the same percentage of existing condominiums could be converted to noncondominiums?"

            Such an ordinance as is contemplated by this question would not, by definition, constitute a zoning ordinance at all.  Zoning involves the regulation of uses to which particular tracts of land within a given zone may legally be put.  Here, however, the question of whether a particular structure could be converted to a condominium would not depend upon where that structure itself was situated.  Rather, it would depend entirely upon the number of existing structures which had already been converted to condominiums.  Nothing in RCW 64.32.110,supra, or elsewhere in chapter 64.32 RCW restricts the legal ability of a county or city to adopt such an ordinance.

            Question (5):

            "Does RCW 64.32.110 prevent counties and cities from adopting zoning ordinances that treat the division of land for the lease of mobile home sites in a different manner than the division of land for the sale of lots to be used for homesites?"

            RCW 64.32.110,supra, would have nothing whatsoever to do with such a zoning ordinance as is thus described.  Even though, in this case, a zoning ordinance would be involved, that ordinance would not relate to the subject of RCW 64.32.110; namely, the sale of condominium units (on the one hand) or the  [[Orig. Op. Page 4]] lease (on the other) of "apartments" as defined in RCW 64.32.010(1).2

             It is hoped that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Chapter 156, Laws of 1963.

2/RCW 64.32.010(1) reads, in material part, as follows:

            ". . .

            "(1) 'Apartment' means a part of the property intended for any type of independent use, including one or more rooms or enclosed spaces located on one or more floors (or parts or parts thereof) in a building, regardless of whether it is destined for a residence, an office, the operation of any industry or business, or for any other use not prohibited by law, and which has a direct exit to a public street or highway, or to a common area leading to such street or highway.

            ". . ."

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