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AGO 1963 No. 69 - November 18, 1963
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John J. O'Connell | 1957-1968 | Attorney General of Washington


ZONING ‑- COUNTY PLANNING COMMISSION ‑- PROPOSED REVISED ZONING PLAN ‑- PUBLICATION.

There is no statutory requirement that the entire text of a proposed revised zoning plan, including official controls, be published (1) prior to the hearing before the planning commission; or (2) prior to the public meeting at which the official controls are adopted by the board of county commissioners.

                                                              - - - - - - - - - - - - -

                                                               November 18, 1963

Honorable E. Lloyd Meeds
Prosecuting Attorney
Snohomish County
Everett, Washington

                                                                                                                Cite as:  AGO 63-64 No. 69

Dear Sir:

            By letter previously acknowledged you requested the advice of this office on a question which we paraphrase as follows:

            Will it be necessary to publish the entire text of a proposed revised zoning plan, including official controls, (1) prior to the hearing before the planning commission, or (2) prior to the public meeting at which the official controls are adopted by the board of county commissioners?

            We answer both questions in the negative.

                                                                     ANALYSIS

            By way of explanation, your letter indicates that the Snohomish county planning commission, under the authority of chapter 36.70 RCW, is presently re‑writing [[rewriting]]the Snohomish county zoning plan and ordinance.  The re‑writing involves revision of the present regulations as well as addition of new zones.  When completed, the new plan and ordinance will contain approximately 100 pages of text.

            RCW 36.32.120 (7) requires the county commissioners to:

            "(7) Make and enforce, by appropriate resolutions or ordinances, all such police and sanitary regulations as are not in conflict with state law, and within the unincorporated area of the county may adopt by reference Washington  [[Orig. Op. Page 2]] state statutes and recognized codes and/or compilations printed in book form relating to the construction of buildings, the installation of plumbing, the installation of electric wiring, health, or other subjects, and may adopt such codes and/or compilations or portions thereof, together with amendments thereto, or additions thereto:  Provided, That there shall be filed in the county auditor's office three copies of such codes, compilations, and/or statutes ten days prior to their adoption by reference, and one copy shall also be filed with the city clerk of each city within the county, and shall provide that any violation of such regulations, ordinances, codes, compilations, and/or statutes or resolutions shall constitute a misdemeanor:  Provided further, That no such regulation, code, compilation, and/or statute shall be effective unless before its adoption, a public hearing has been held thereon by the board of county commissioners of which at least ten days' notice has been given.  The notice must set out a copy of the proposed regulations; or if a code is adopted by reference the notice shall set forth the full official title and a statement describing the general purpose of such code.  The notice shall also include the day, hour, and place of hearing and must be given by publication in the newspaper in which legal notices of the county are printed;"

            Chapter 36.70 RCW is a comprehensive planning enabling act setting forth the object, purpose and procedure to be followed in the adoption of all county zoning legislation.  RCW 36.70.010 sets forth the purpose and object of chapter 36.70 RCW as follows:

            "The purpose and intent of this chapter is to provide the authority for, and the procedures to be followed in, guiding and regulating the physical development of a county or region through correlating both public and private projects and coordinating their execution with respect to all subject matters utilized in developing and servicing land, all to the end of assuring the highest standards of environment  [[Orig. Op. Page 3]] for living, and the operation of commerce, industry, agriculture and recreation, and assuring maximum economies and conserving the highest degree of public health, safety, morals and welfare."

            Zoning regulations result from an exercise of the county police power and may only be adopted in the interests of the health, safety, morals, and general welfare of the people affected.  RCW 36.70.010;Pierce v. King County, 162 Wash. Dec. 319 (1963) [[62 Wn.2d 324]].  A fundamental principle in connection with the adoption of zoning regulations is that the procedures set forth in enabling legislation must be followed.  State v. Thomasson, 161 Wash. Dec. 424 (1963); State ex rel. Kuphal v. Bremerton, 59 Wn.2d 825, 371 P.2d 37 (1962); 8 McQuillin, Municipal Corporations (3rd ed.) §§ 25.249-25.251.  Notice requirements, in particular, must be followed.  Pierce v. King County, 162 Wash. Dec. 319 [[62 Wn.2d 324]], 329 (1963), supra.

            The planning enabling act establishes the planning commission as the investigative arm of the board of county commissioners.  That body is charged with the duty of comprehensive consideration of all those elements which may have some bearing on planned zoning.  State ex rel. Gunning v. Odell, 58 Wn.2d 275, 362 P.2d 254 (1961); Lauterbach v. Centralia, 49 Wn.2d 550, 304 P.2d 656 (1956).  The notice and hearing requirements pertaining to adoption of a comprehensive plan1/     ". . . legislatively defined and enacted policies, standards, precise detailed maps and other criteria, all of which control the physical development of a county or any part thereof or any detail thereof, and are the means of translating into regulations and ordinances all or any part of the general objectives of the comprehensive plan.  Such official controls may include, but are not limited to, ordinances establishing zoning, subdivision control, platting, and adoption of detailed maps."  [[Orig. Op. Page 4]] by the commission are as follows:

            RCW 36.70.380:

            "Before approving all or any part of the comprehensive plan or any amendment, extension or addition thereto, the commission shall hold at least one public hearing and may hold additional hearings at the discretion of the commission."

            RCW 36.70.390:

            "Notice of the time, place and purpose of any public hearing shall be given by one publication in a newspaper of general circulation in the county and in the official gazette, if any, of the county, at least ten days before the hearing."  (Emphasis supplied.)

            The duties of the board of county commissioners in relation to adoption of the comprehensive plan are contained in RCW 36.70.420:

            "A copy of a comprehensive plan or any part, amendment, extension of or addition thereto, together with the motion of the planning agency approving the same, shall be transmitted to the board for the purpose of being approved by motion and certified as provided in this chapter."

            After providing for the certification of a comprehensive plan, the planning enabling act sets forth the procedure to be followed in adopting official controls.2/   (RCW 36.70.550,et seq.)

             [[Orig. Op. Page 5]]

            The notice and hearing requirements pertaining to the planning commission prior to recommending that the board of county commissioners adopt the comprehensive plan into law provide:

            RCW 36.70.580:

            "Before recommending an official control or amendment to the board for adoption, the commission shall hold at least one public hearing."

            RCW 36.70.590:

            "Notice of the time, place and purpose of the hearing shall be given by one publication in a newspaper of general circulation in the county and in the official gazette, if any, of the county at least ten days before the hearing.  The board may prescribe additional methods for providing notice."

            Upon receipt of a recommended official control or amendment thereto (RCW 36.70.600-36.70.610), the board of county commissioners is required, at its next regular public meeting, to "set the date for a public meeting where it may, by ordinance, adopt or reject the official control or amendment."  (RCW 36.70.620)

            There are further provisions, including notice requirements, where the board amends a proposed official control or initiates a proposal.  See, RCW 36.70.630 and 36.70.640.

            It is readily apparent that the above provisions, with the possible exception of those relating to official controls, are not within the purview of RCW 36.32.120 (7),supra.  Proposed comprehensive plans clearly are not "regulations," but rather serve as a basis and  [[Orig. Op. Page 6]] guide for the adoption of regulations, in the form of "official controls."  See, RCW 36.70.020 (6),supra; 8 McQuillin, Municipal Corporations (3rd ed.) § 25.06.

            Of course, this is not to say that there is no requirement of notice to the public in the adoption of zoning regulations.  The purpose of the several required public hearings is to provide opportunity for members of the public to present all possible objections and opinions to both the planning commission and (before official controls are adopted) the board of county commissioners.  In view of the fact that zoning regulations are a serious impairment of the right to use and enjoy property (Pierce v. King County, supra), the notice provisions of chapter 36.70 RCW must be interpreted as mandatory.

            It could be argued that the adoption of official controls amounts to the adoption of police regulations and that RCW 36.32.120, supra, is applicable at that stage.  However, since chapter 36.70 RCW is special enabling legislation concerning zoning procedure,3/ the general statute relating to county police regulations is not applicable to the extent that it is inconsistent with the special law.  See,City of Airway Heights v. Schroeder, 53 Wn.2d 625, 335 P.2d 578 (1959).

            An examination of chapter 36.70 RCW discloses that the legislature provided for notice to be given in a certain way at each step of the proceedings and, as if to emphasize its intention to treat the notice requirements of that chapter as exclusive and separate from the general requirement of RCW 36.32.120,supra, left it to the discretion of the county commissioners whether or not to provide additional notice in at least one important instance.  See, RCW 36.70.590.

            In our opinion, the legislative intent, thus expressed, was not to require publication of the full text of the plan at any stage; however, such publication would be permissible at the option of the board of county commissioners.

             [[Orig. Op. Page 7]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/"Comprehensive plan" is defined in RCW 36.70.020(6) as:

            ". . . the policies and proposals approved and recommended by the planning agency or initiated by the board and approved by motion by the board (a) as a beginning step in planning for the physical development of the county; (b) as the means for coordinating county programs and services; (c) as a source of reference to aid in developing, correlating, and coordinating official regulations and controls; and (d) as a means for promoting the general welfare.  Such plan shall consist of the required elements set forth in RCW 36.70.330 and may also include the optional elements set forth in RCW 36.70.350 which shall serve as a policy guide for the subsequent public and private development and official controls so as to present all proposed developments in a balanced and orderly relationship to existing physical features and governmental functions."

2/"Official controls" are defined in RCW 36.70.020(11) as:

3/Zoning is generally regarded as a special exercise of police power.  See, 8 McQuillin, Municipal Corporations, § 25.34; Lauterbach v. Centralia, supra.

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