APPLICABILITY OF BUILDING CODES TO STATE AGENCIES

ZONING ‑- STATE AGENCIES ‑- APPLICABILITY OF BUILDING CODES TO STATE AGENCIES

A state agency is not required to comply with the provisions of a local (county or city) zoning code.

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                                                               November 24, 1976

Honorable Ralph W. Larson
Director, Department of Game
600 North Capitol Way
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1976 No. 72

Dear Sir:

            By recent letter you have requested our opinion on a question which we paraphrase as follows:

            Is a state agency, in using state‑owned land for a given project falling within the scope of its legal authority, required to comply with the provisions of a local (county or city) zoning code?

            We answer this question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Both counties and cities, under the authority granted to them by Article XI, § 11 of our state constitution1/ and such statutes as those contained in chapters 35.63 and 36.70 RCW, may enact local land use regulations or zoning codes.  See, AGLO 1973 No. 103 [[to Earl F. Angeuine, Prosecuting Attorney, Skagit County, on November 7, 1973, an Informal Opinion, AIR-73603]], copy enclosed.  It has, however, been the consistent position of this office for many years thatin the absence of a statute to the contrary, such codes are not applicable to the state itself or to the lawful uses made by the state of its own lands.  As explained in an opinion dated February 28, 1947, to the state auditor, a copy of which you will also find enclosed, quoting from the oft-cited case ofKentucky Institution for Blind v. Louisville, 123 Ky. 767, 97 S.W. 402 (1906),

            "* * *  The principle is that the state, when creating municipal governments, does not cede to them any control of the state's property situated within them, nor over any property  [[Orig. Op. Page 2]] which the state has authorized another body or power to control.  The municipal government is but an agent of the state‑- not an independent body.  It governs in the limited manner and territory that is expressly or by necessary implication granted to it by the state.  It is competent for the state to retain to itself some part of the government even within the municipality, which it will exercise directly, or through the medium of other selected and more suitable instrumentalities.  * * *"

            Other cases with the same effect include Hall v. City of Taft, 47 C.2d 177, 302 P.2d 574 (1956);Davidson County v. Harmon, 200 Tenn. 575, 292 S.W.2d 777 (1956);Charleston v. Southeastern Construction Co., 134 W.Va. 666, 64 S.E.2d 676 (1950); and Milwaukee v. McGregor, 140 Wis. 35, 121 N.W. 642 (1909).  See, also, Zoning Regulations of College Use, 64 A.L.R.3rd 1138 at 1145, and cases cited therein.

            It is true that our own state supreme court has recently taken a somewhat different view when dealing with the legal relationship between one local governmental unit and another.  Thus, inEdmonds Sch. Dist. v. Mountlake, 77 Wn.2d 609, 465 P.2d 177 (1970), the court held that a public school district is required to comply with a city's zoning and building codes, even in the construction of school facilities on district-owned land.  There is, however, an important difference between that relationship and the one which exists between the state itself and its subordinate political subdivisions or municipalities.  See, again,Kentucky Institute, Etc. v. Louisville, supra.

            We also note that, consistent with the foregoing, our legislature has, upon occasion, expressly made stateowned lands subject to particular local regulations.  Thus, § 28 of the Shorelines Management Act of 1971 (chapter 90.58 RCW) expressly states that:

            "The provisions of this chapter [including local regulations adopted thereunder] shall be applicable to all agencies of state government, counties, and public and municipal corporations and to all shorelines of the state owned or administered by them."

             [[Orig. Op. Page 3]]

            Likewise, as recently noted in AGLO 1974 No. 106 [[to Keith A. Angier, Director, Department of General Administration, on December 30, 1974, an Informal Opinion, AIR-74606]], copy enclosed, local building codes (as distinguished from zoning codes) enacted pursuant to chapter 96, Laws of 1974, Ex. Sess. (the state building code act) have expressly been made applicable by the legislature state building projects.  But, as we then further explained in that opinion, at pp. 6-7, the legislature refrained in that 1974 law from similar providing in the case of land use regulations or zoning codes.

            Therefore, at this time we adhere to our previous opinions on the subject and, based thereon, we answer your present question, as above paraphrased, in the negative.

            We trust that the foregoing will be of some assistance to you.