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AGO 1958 No. 149 - January 17, 1958
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John J. O'Connell | 1957-1968 | Attorney General of Washington

CITIES AND TOWN ‑- COUNTY ZONING INAPPLICABLE TO MUNICIPAL AIRPORT --COUNTIES ‑- ZONING LAWS INAPPLICABLE TO MUNICIPAL AIRPORT

The City of Tacoma would not be governed by the county zoning regulations in the establishing of an airport outside its corporate limits.

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                                                                 January 17, 1958

Honorable John G. McCutcheon
Prosecuting Attorney
Pierce County
Tacoma, Washington

                                                                                                              Cite as:  AGO 57-58 No. 149

Dear Sir:

            You have requested an opinion of this office on a question which we paraphrase as follows:

            Is the city of Tacoma governed by the county zoning regulations in the establishing of an airport outside its corporate limits?

            We answer your question in the negative.

                                                                     ANALYSIS

            Municipalities are granted the power to establish airports either within or without their territorial limits by the terms of chapter 14.08, RCW.  The provisions of RCW 14.08.020 declare the establishment of an airport to be for a public purpose and a matter of public necessity.  RCW 14.08.030 reads, in part, as follows:

             [[Orig. Op. Page 2]]

            "(1) Every municipality is hereby authorized, through its governing body, to acquire property, real or personal, for the purpose of establishing, constructing, and enlarging airports and other air navigation facilities and to acquire, establish, construct, enlarge, improve, maintain, equip, operate,and regulate such airports and other air navigation facilities and structures and other property incidental to their operation, either within or without the territorial limits of such municipality and within or without this state; . . .

            "(2) Property needed by a municipality for an airport or restricted landing area, or for the enlargement of either, or for other airport purposes, may be acquired by purchase, gift, devise, lease or other means if such municipality is able to agree with the owners of said property on the terms of such acquisition, and otherwise by condemnation in the manner provided by the law under which such municipality is authorized to acquire like property for public purposes,full power to exercise the right of eminent domain for such purposes being hereby granted every municipality both within and without its territorial limits. . . ." (Emphasis supplied.)

            It is our opinion that the language of this statute indicates a legislative intent that projects undertaken pursuant to its provisions should not be subject to the zoning powers of the counties.

            In a recent New Jersey case where this question was presented,Aviation Services v. Board of Adjustment, 20 N.J. 275, 119 A. (2d) 761, 766, the court examined a similar enabling statute and declared:

            "The absence of any language which would limit a municipal airport undertaking, either within or without its boundaries, and the bestowal of the power of eminent domain to subserve the program all reflect legislative intent to immunize the acquisition and maintenance from the zoning power. . . ."

             [[Orig. Op. Page 3]]

            That municipal airport projects are not subject to the zoning power appears to be the modern rule.  Petition of City of Detroit, 308 Mich. 480, 14 N.W. (2d) 140; State ex rel. Helsel v. Board of County Commissioners, 79 N.E. (2d) 698 (Ohio C. P., 1947); City and County of Denver v. Board of Commissioners of Araphoe County, 113 Colo. 150, 156 P. (2d) 101.  In the Ohio case, State ex rel. Helsel v. Board of County Commissioners, supra, the theory of zoning legislation was more generally considered in relation to public projects, at page 705, as follows:

            "Zoning ordinances are upheld on the theory that they bear a real and substantial relation to the public welfare.  Their validity rests upon the principle that the exercise of rights incident to the ownership of private property may be restricted in the interest of the general welfare of the inhabitants of the municipality.  Through the medium of zoning ordinances municipalities may insist that private rights in real property yield to the general good of the community, but the presumption is that the use of public property for public purposes is designed to promote the general welfare also, and no case or textual authority has been cited, that supports the view that municipalities by zoning ordinances, may restrict or limit the use ofpublic property for public purposes."

            For the foregoing reasons, we conclude that the city of Tacoma would not be governed by the county zoning regulations in establishing an airport outside its corporate limits.

            We trust the foregoing satisfactorily answers your inquiry.

Very truly yours,

JOHN J. O'CONNELL
Attorney General


FRANKLIN K. THORP
Assistant Attorney General

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