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AGLO 1972 No. 2 - January 05, 1972
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Slade Gorton | 1969-1980 | Attorney General of Washington

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                                                                  January 5, 1972

Honorable Edward C. Beeksma
Prosecuting Attorney, Island County
Island County Court House
Coupeville, Washington 98239
 
          Attention:  !ttDavid B. Strong
            Deputy Prosecuting Attorney                                                                                              Cite as:  AGLO 1972 No. 2 (not official)
Dear Sir:
 
            We are in receipt of your letter requesting our opinion on the following question:
 
            "In view of RCW 36.34.330, is a county forbidden by RCW 36.87.130 to negotiate an exchange of properties, involving the vacation of a county road, where the exchange would enable the county to acquire substantially similar property within the same plat and which also abuts upon the same body of salt or fresh water, where the purpose is to enable the county to retain equivalent public access for park, viewpoint, recreational, educational or other public purposes while allowing a re‑plat of the property involved."
 
            By way of background to this question, you have provided us with the following information:
 
            "The Island County Planning Office has under consideration a request for re‑platting a large property which borders on the water.  The existing plat provides for five roads abutting on the water.  The Planner would like to be able to negotiate an exchange of properties whereby the county would receive five substantially similar road locations within the plat or in the alternative, an equivalent single piece of property which could be used for park, viewpoint, recreational, educational or other public purposes."
 
                                                                     ANALYSIS
 
            The first statute to be noted in connection with your question is RCW 36.87.130 which provides as follows:
 
             [[Orig. Op. Page 2]]
            "No county shall vacate a county road or part thereof which abuts on a body of salt or fresh water unless the purpose of the vacation is to enable any public authority to acquire the vacated property for port purposes, boat moorage or launching sites, or for park, viewpoint, recreational, educational or other public purposes, or unless the property is zoned for industrial uses."
 
            The other statute which you have cited, RCW 36.34.330, relates to the exchange of county property for privately owned property of equal value and provides as follows:
 
            "The board of county commissioners of any county shall have authority to exchange county real property for privately owned real property of equal value whenever it is determined by a decree of the superior court in the county in which the real property is located, after publication of notice of hearing is given as fixed and directed by such court, that:
 
            "(1) The county real property proposed to be exchanged is not necessary to the future foreseeable needs of such county; and
 
            "(2) The real property to be acquired by such exchange is necessary for the future foreseeable needs of such county; and
 
            "(3) The value of the county real property to be exchanged is not more than the value of the real property to be acquired by such exchange."
 
            Unfortunately, under the proposal as you have outlined it the "vacated property" itself ‑ i.e., the property presently occupied by the five roads to be vacated ‑ would not then be used by a public authority for one of the several recreational purposes specified in RCW 36.87.130.  Instead, upon vacating these roads the county would then utilize RCW 36.34.330 to exchange this property for other property of equal value located elsewhere to be used for these purposes.
 
            Commendable though this proposal may be, we do not believe that it can be said to be authorized at the present time.  The vacation of a county road abutting on a body of  [[Orig. Op. Page 3]] salt or fresh water constitutes an exception, under RCW 36.87.130, to the general prohibition contained in the opening clause of that statute.  By the literal terms of the statute, this exception applies only where "the vacated property" itself is to be used for port purposes, boat moorage or other launching sites, etc.  Moreover, even if the statute were to be regarded as being ambiguous on this point, we would be constrained to reach the same conclusion by virtue of the rule that exceptions in a statute are to be strictly construed.  See, e.g., State v. Christensen, 18 Wn.2d 7, 19, 137 P.2d 512 (1943) as follows:
 
            "We recognize the rule that exceptions, generally, should be strictly, but reasonably, construed; that they extend only so far as their language warrants; and all doubts should be resolved in favor of the general provision, rather than the exception."
 
            Based upon the foregoing, we believe that RCW 36.87.130 must be regarded as barring your county from implementing the proposal which you have outlined.
 
            We trust that the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL

Philip H. Austin
Deputy Attorney General

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