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AGO 1961 No. 60 - August 31, 1961
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS ‑- COUNTY ‑- BOARD OF COUNTY COMMISSIONERS ‑- PLANNING ENABLING ACT ‑- ZONING RESOLUTIONS ‑- ELECTIONS.

There is no provision under the planning enabling act (chapter 36.70 RCW) for holding an election on the acceptance or rejection of a zoning resolution and land use map.

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                                                                 August 31, 1961

Honorable R. DeWitt Jones
Prosecuting Attorney
Clark County
301 Court House
Vancouver, Washington

                                                                                                                Cite as:  AGO 61-62 No. 60

Dear Sir:

            By letter previously acknowledged you requested the opinion of this office on the following questions:

            "1. Is there any provision under the Planning Enabling Act for holding an election on the acceptance or rejection of a zoning resolution and land use map?

            "2. May the County Commissioners use county funds to pay the cost of a county-wide election called for the purpose of presenting the question of acceptance or rejection of a zoning resolution and land use map to the electors?"

            In answer to your first question, a complete reading of the laws of 1959, chapter 201 (RCW 36.70.010, et seq.) fails to disclose any provision for holding an election on the acceptance or rejection of a zoning resolution and land use map.  Your second question is answered in the negative.

                                                                     ANALYSIS

            RCW 36.70.200 provides that contemporaneously, with the creation of a planning agency, the board of county commissioners shall create a board of adjustment and may establish the office of zoning adjuster. RCW 36.70.810 provides in part:

             [[Orig. Op. Page 2]]

            "The board of adjustment, subject to appropriate conditions and safeguards as provided by the zoning ordinance or the ordinance establishing the board of adjustment, if there be such, shall hear and decide:

            "(3) Appeals, where it is alleged by the applicant that there is error in any order, requirement, permit, decision, or determination made by an administrative official in the administration or enforcement of this chapter or any ordinance adopted pursuant to it."

            RCW 36.70.890 provides that action taken by a board of adjustment is final unless within ten days thereafter the original applicant or adverse party makes application to a court of competent jurisdiction for a writ of prohibition or certiorari.  What our court has said inState ex rel. Eastvold v. Maybury, 49 Wn. (2d) 533, 539, 304 P. (2d) 663 (1956), is apposite here:

            "Although the facts are not necessarily apropos, the language of this court inState ex rel. State Board of Medical Examiners v. Clausen, 84 Wash. 279, 282, 146 Pac. 630 (1915), is pertinent:

            "'But where a person or board is charged by law with a specific duty,and the means for its performance are appointed by law, there is no room for implied powers, and the means appointed must be followed, however inadequate may be the result.'  (Italics ours.)"

            The cited statutes clearly indicate that the method to be followed by those opposing the acceptance or rejection of a zoning resolution is to appeal the planning agency's determination to the board of adjustment and then if necessary to seek judicial review pursuant to the appropriate statutes.

            It is well established in this jurisdiction that boards of county commissioners have only such powers as have been granted to them expressly or by necessary implication by the constitution and statutes of this state.  State ex rel. King County v. Superior Court, 33 Wn. (2d) 76, 204 P. (2d) 514 (1949), and cases cited therein.

            We find no legal authority in any of the aforementioned statutes  [[Orig. Op. Page 3]] that would allow the county commissioners to call an election for the stated purpose and to expend county funds to obtain that end.

            Therefore, it is our conclusion that your second question must be answered in the negative.

            We trust this opinion will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CHARLES E. SILJEG
Assistant Attorney General

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