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February 8, 1971
Honorable John C. Merkel
614 Division Street
Port Orchard, Washington 98366
Cite as: AGLO 1971 No. 21 (not official)
This is written in response to your letter dated February 4, 1971, requesting clarification of a certain aspect of AGO 1970 No. 26 [[to Prosecuting Attorney, Kitsap County on November 30, 1970]], which was written to your predecessor on November 30, 1970.
In this opinion, the following two conclusions were stated:
"(1) Section 7, chapter 185, Laws of 1969, Ex. Sess. (RCW 36.87.130) limiting the power of a county to vacate a county road which abuts on a body of salt or fresh water, applies to a county road, a lateral edge of which touches or encroaches upon a body of salt or fresh water, as well as to one whose terminal end touches upon such a body of water.
"(2) A county road abuts on a body of salt or fresh water if it touches or enroaches upon the line of ordinary high tide or high water as marked by the line of vegetation."
The statute which was thus construed, § 7, chapter 185, Laws of 1969, Ex. Sess. (RCW 36.87.130), reads as follows:
"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." (Emphasis supplied.)
[[Orig. Op. Page 2]]
Under this statute, with emphasis on the phrase which we have underscored, it is to be seen that the legislature has not restricted the vacation of an entire county road merely because some portion of it abuts on a body of water; instead, the legislature has only restricted the vacation of that portion of the county road which thus abuts.
Of course, from a practical standpoint, the inability of a board of county commissioners to vacate a certain portion of a county road because that portion abuts on a body of water may render it somewhat impractical for the board to vacate other adjacent or nearby portions of the same road even though those portions do not abut upon a body of water in the manner and to the extent more fully described in AGO 1970 No. 26. However, the legal restriction imposed by the subject statute is only applicable to that portion of the road which, itself, abuts upon the body of water.
We trust that the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Deputy Attorney General