AGLO 1974 No. 83 - Oct 1 1974
COUNTIES ‑- ZONING LAWS ‑- ADOPTION AND REGULATION OF COUNTY ZONING CODES
Time period for adoption of official controls following adoption of comprehensive plan pursuant to RCW 36.70.320 ‑ 36.70.440; authority to adopt interim zoning ordinance; amendment of interim zoning ordinance and map prior to adoption of permanent zoning ordinance; necessity for periodic update of comprehensive plan; legality of a moratorium on land development while comprehensive plan is being updated; time limitations for bringing a lawsuit for testing the validity of planning or zoning actions taken by a board of county commissioners.
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October 1, 1974
Honorable David F. Thiele
Island County Courthouse
Coupeville, Washington 98239
Attention: !ttMr. David B. Strong
Chief Deputy Cite as: AGLO 1974 No. 83
By letter previously acknowledged you have requested the opinion of this office on a number of questions relating to county planning and zoning under chapter 36.70 RCW. Those here to be considered are reordered, paraphrased and answered in the analysis which follows:
Where a county has adopted a comprehensive plan pursuant to the provisions of RCW 36.70.320 ‑ 36.70.440, must it then adopt official controls within any limited period of time?
We have advised previously that the basic source of authority for the adoption of a zoning code by either a county, city or town, in order to regulate land uses within its territory, is Article XI, § 11 of our state constitution which provides that:
"Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."1/
[[Orig. Op. Page 2]]
The exercise of this power in the field of land use zoning is implemented by enabling legislation; namely chapter 35.63 RCW with respect to cities, town and counties, and chapter 36.70 RCW with respect to county or regional planning. Under the latter chapter, a board of county commissioners may create a planning commission pursuant to RCW 36.70.030 or, as an alternative, it may ". . . create a planning department which shall be organized and function as any other department of the county" in accordance with RCW 36.70.040. Under both of these statutes, an ordinance is the means by which the board is to act in creating the planning agency. Upon creation of such an agency, a county may engage in a planning program pursuant to the planning enabling act, chapter 36.70 RCW.
RCW 36.70.550 provides that:
"From time to time, the planning agency may, or if so requested by the board shall, cause to be prepared official controls which, when adopted by ordinance by the board, will further the objectives and goals of the comprehensive plan. The planning agency may also draft such regulations, programs and legislation as may, in its judgment, be required to preserve the integrity of the comprehensive plan and assure its systematic execution, and the planning agency may recommend such plans, regulations, programs and legislation to the board for adoption."
Under RCW 36.70.640, a board of county commissioners may itself also initiate consideration of the adoption of official controls, as follows:
"When it deems it to be for the public interest, the board may initiate consideration of an ordinance establishing an official control, or amendments to an existing official control, including those specified in RCW 36.70.560. The board shall first refer the proposed official control or amendment to the planning agency for report which shall, thereafter, be considered and processed in the same manner as that set forth in RCW 36.70.630 regarding a change in the recommendation of the planning agency."
Neither of these statutes specifies a time limit within which a board must adopt such official controls following its [[Orig. Op. Page 3]] establishment of a comprehensive plan. The statutes, in fact, provide for considerable flexibility and discretion as to the timing of their adoption. Thus, RCW 36.70.550 provides that the planning agency's action is to be "from time to time" or when requested by the board of county commissioners, and RCW 36.70.640 authorizes the board to initiate consideration of the adoption of an official control "when it deems it to be for the public interest . . ."
". . . the enactment of comprehensive zoning ordinances in their inception, as desirable as they may be in promoting the health and general welfare of the public, being permissive and not mandatory, are within the discretion of the legislative body of the city or county." Bartz v. Board of Adjustment, 80 Wn.2d 209, 217, 492 P.2d 1374 (1972).
We therefore answer your first question in the negative.
Where a county has adopted a comprehensive plan pursuant to the provisions of RCW 36.70.320 ‑ 36.70.440, may it thereafter adopt an interim zoning ordinance?
The term "ordinance," as used in chapter 36.70 RCW, means:
". . . a legislative enactment by a board [of county commissioners]; in this chapter the word, 'ordinance', is synonymous with the term 'resolution', as representing a legislative enactment by a board of county commissioners." (RCW 36.70.020(12))
RCW 36.70.790 specifically provides that a county may adopt as an emergency measure a temporary interim zoning map, as follows:
"If the planning agency in good faith, is conducting or intends to conduct studies within a reasonable time for the purpose of, or is holding a hearing for the purpose of, or has held a hearing and has recommended to the board the adoption of any zoning map or amendment or addition thereto, or in the event that new territory for [[Orig. Op. Page 4]] which no zoning may have been adopted as set forth in RCW 36.70.800 may be annexed to a county, the board, in order to protect the public safety, health and general welfare may, after report from the commission, adopt as an emergency measure a temporary interim zoning map the purpose of which shall be to so classify or regulate uses and related matters as constitute the emergency."
RCW 36.70.730, on the other hand, provides that a zoning ordinance comprised of textual materials alone, without a map, may be prepared and adopted by a board of county commissioners in the absence of (i.e., prior to the adoption of) a comprehensive plan. And finally, RCW 36.70.720 provides that:
"Zoning maps as an official control may be adopted only for areas covered by a comprehensive plan containing not less than a land use element and a circulation element. . . ."
The great weight of authority sustains the right of a municipal corporation to enact interim zoning ordinances. See, 30 A.L.R.3rd 1196, and Mtr. of Lo Conti v. City of Utica, 52 Misc.2d 815, 276 N.Y.S.2d 720 (1966). However, courts have gone both ways on this issue. For two cases sustaining interim zoning, see, Lebanon v. Woods, 153 Conn. 182, 215 A.2d 112 (1965), and Gayland v. Salt Lake County, 11 Utah 2d 307, 358 P.2d 633 (1961); conversely, for two cases invalidating interim zoning, see, Kline v. Harrisburg, et al., 362 Pa. 438, 68 A.2d 182 (1949), and Downey v. City of Sioux City, 208 Iowa 1273, 227 N.W. 125 (1929). Our own court, in Smith v. Skagit County, 74 Wn.2d 715, 453 P.2d 832 (1969), has recognized the validity of interim zoning, stating, at page 739, that:
". . . Interim zoning is no mere stopgap, but rather is a deliberate and purposeful device designed to classify or regulate uses of land and related matters (RCW 36.70.790), and is necessary to preserve the zoning scheme as presented to the public in the comprehensive plan and attendant maps and resolutions or ordinances."
A county apparently must adopt a map to properly accomplish interim zoning, however:
[[Orig. Op. Page 5]]
"An interim zoning may be accomplished through adoption by the board of county commissioners of an interim zoning map and ordinance which shall serve to classify or regulate the use of land when warranted as an emergency measure to safeguard the public welfare pending completion of the zoning scheme and as a safeguard against manipulation of land uses in contemplation of a final zoning law. . . ." (Emphasis supplied.) Smith, supra.
In view of the specific authorization for a county to adopt an interim zoning map (RCW 36.70.790) and the failure of the Planning Enabling Act to authorize or even to refer to an interim textual zoning ordinance, together with the comment by the court in Smith, supra, we must express doubt as to the authority of a county to adopt an interim textual zoning ordinance alone ‑ without a map. In construing statutes the mention of one thing implies the exclusion of another thing under the maxim expressio unis est exclusio alterius. State ex rel. Port of Seattle v. Dept. P. S., 1 Wn.2d 102, 95 P.2d 1007 (1939). We therefore answer your second question in the affirmative with the caveat that a mere textual zoning ordinance, without a map, most likely will not be upheld as a valid interim zoning measure.
May an interim zoning ordinance and map be amended by a board of county commissioners before it adopts a permanent zoning ordinance and map?
In view of our answer to your second question, we will assume that your reference to "an interim zoning ordinance" means an ordinance which adopts the interim zoning map referred to in RCW 36.70.790, rather than a zoning ordinance consisting of a text without a map. With this qualification in mind, we believe an interim zoning ordinance and map may be amended prior to the adoption by a board of county commissioners of a permanent zoning ordinance and map.
A zoning map is one form of official control which can be adopted by ordinance to further the objectives and goals of the comprehensive plan. See, RCW 36.70.550. Under RCW 36.70.790, supra, in the event certain condions are met,
[[Orig. Op. Page 6]]
". . . the board, in order to protect the public safety, health and general welfare may, . . . adopt as an emergency measure a temporary interim zoning map the purpose of which shall be to so classify or regulate uses and related matters as constitute the emergency."
RCW 36.70.640 specifically authorizes a board of county commissioners to initiate consideration of, and process, amendments to existing official controls. Nothing in the Planning Enabling Act indicates that "interim" official controls are so different from "permanent" official controls that they cannot be amended; the opposite conclusion is evident from the broad wording of RCW 36.70.640. To conclude that an interim zoning ordinance and map could not be amended would only lead to potential unreasonable restrictions on the use of land.
"The general rule is that interim zoning is intended and designed to prevent zoning changes until a comprehensive plan is adopted, even though in certain circumstances it may not prevent a municipality's right to rezone." Brandt v. Marion County, 6 Ore.App. 617, 488 P.2d 1391 (1971), citing 30 A.L.R.3rd 1196.
". . . [W]hile zoning implies a degree of permanency, it is not static and zoning authorities cannot blind themselves to changing conditions. Thus, when conditions surrounding or in relation to a zoned area have so clearly changed as to emphatically call for revisions in zoning, the appropriate zoning authorities are under a duty to initiate proceedings and consider the necessity of pertinent modifications of their zoning ordinances. Otherwise, outmoded zoning regulations can become unreasonable, and the zoning authorities' failure to suitably amend or modify their ordinances can become arbitrary, in which event courts can and should grant appropriate relief. 2 Metzenbuam, Zoning 1125 (2d ed. 1955)." Bishop v. Town of Houghton, 69 Wn.2d 786 at 792, 420 P.2d 368 (1966). See also, McNaughton, supra.
Must a comprehensive plan be updated within a limited period of time following its initial adoption, and if so, what is the required limited period?
[[Orig. Op. Page 7]]
RCW 36.70.410 provides that:
"When changed conditions or further studies by the planning agency indicate a need, the commission may amend, extend or add to all or part of the comprehensive plan in the manner provided herein for approval in the first instance."
Likewise, RCW 36.70.430 states that:
"When it deems it to be for the public interest, or when it considers a change in the recommendations of the planning agency to be necessary, the board may initiate consideration of a comprehensive plan, or any element or part thereof, or any change in or addition to such plan or recommendation. The board shall first refer the proposed plan, change or addition to the planning agency for a report and recommendation. Before making a report and recommendation, the commission shall hold at least one public hearing on the proposed plan, change or addition. Notice of the time and 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."
Both of these statutory provisions regarding the amendment or updating of a comprehensive plan are permissive; and no other section of the Planning Enabling Act contains any mandatory language regarding the updating of that plan. We must therefore conclude that a comprehensive plan of a county is not legally required to be updated within any particular period of time following its initial adoption. On the other hand, obviously, if such a comprehensive plan is to remain a current and constant expression of the best judgment of the legislative body empowered to work with it, it most certainly should be revised from time to time as changed conditions warrant. Accord, the following generalized observation regarding zoning laws made by one leading text writer in the field:
"Since a primary consideration in the proper enactment of a zoning ordinance is the future growth and welfare of a city [or county] it must be understood that changing conditions require orderly changes in the law. . . ." 1 Yokley, Zoning Law and Practice, §§ 3-6.
[[Orig. Op. Page 8]]
Is a board of county commissioners required to declare a moratorium on land development in its county to enable the county to update its comprehensive plan before the board either adopts any rezones or other amendments to the county zoning ordinance or approves any plats or subdivisions?
While no Washington cases specifically uphold the declaration of a general moratorium on land development, our supreme court recently approved action by a county, pursuant to the Planning Enabling Act, by which land effectively was held subject to a moratorium on development for particular uses until such time as it could be precisely zoned under RCW 36.70.720 and 36.70.740, supra. See State ex rel. Randall v. Snohomish Cy., 79 Wn.2d 619, 488 P.2d 511 (1971), in which the county appealed a trial court determination that voided its "rural use" zone as it applied to certain property of the plaintiffs. Prior to 1957, the plaintiffs had acquired about 37 acres near Marysville, which had not been used for any business purpose. During that year, the property was zoned "rural use," a classification which allowed commercial uses and which was considered to be a "holding zone." Later, in 1964, the county adopted a comprehensive plan for the area under which the property retained its "rural use" classification. Then, in 1966, it changed the "rural use" zoning resolution by reducing substantially the number and kinds of uses permitted therein. In 1967, another amendment removed all business and commercial uses from those permitted in "rural use" zones. Thereafter, in 1968, plaintiffs sought unsuccessfully to have the county commissioners rezone the 37 acres from "rural use" to "community business," and then they commenced this action.
On the appeal from a declaratory judgment by the trial court that the county's "rural use" zoning resolutions were void, the supreme court construed the zoning of plaintiff's property as an action under RCW 36.70.780 "classifying unmapped areas,"2/ rather than an interim zoning action under RCW 36.70.790. The court then reversed the trial court's determinations that the amendment to the zoning resolution was a blanket "rezone" improperly adopted and, therefore, void; and that while RCW 36.70.780 permits a temporary "holding" zone, five years duration for such zone was unreasonable.
In disagreeing with the trial court's conclusions (1) that the county had no authority to impress such "broad protective [[Orig. Op. Page 9]] controls" on property within an unmapped area because seven-eights of the county was zoned for rural use, and (2) that the removal of the business and commercial uses from such a large area is beyond the purview of RCW 36.70.780, the court said:
"There is nothing in RCW 36.70.780 which limits the breadth of impact of permissible controls thereunder. The statute is a broad grant of power to the zoning authorities to enact 'such broad protective controls as may be deemed appropriate and necessary' by those authorities. The facts that a large area is involved and that a broad use category is excluded from those automatically allowed are not sufficient, in our view, to remove an otherwise valid protective control from the authority granted by this statute.
". . .
"The trial court found that the 'rural use' resolutions and amendments bore no substantial relationship to public health, safety, morals and general welfare. The record shows that this finding was premised on the court's determination that the amendments which restricted uses in a rural use zone were beyond the scope of the enabling statute; and that a 5-year period (after the date that a comprehensive plan was adopted) is, per se, beyond a permissible period for application of 'holding zone' classifications.
"As previously observed, the first premise is incorrect. We must also disagree with the trial court's second [[Orig. Op. Page 10]] determination. There is no basis in statute, ordinance or precedent‑-and we perceive none in reason‑-for imposing a fixed time limit on the efficacy of 'unmapped area' controls ('holding zones'). This is not to say that such controls may be employed for an unreasonable length of time, but rather that a lack of reasonableness is not automatically established by the fact that an 'unmapped area' designation has been retained for 5 years following adoption of a comprehensive plan."3/
Although the court did not characterize the county's action as such, Snohomish County's placing of the plaintiff's land in a "holding" zone, and its amendment to the county zoning resolutions prohibiting use of that land for business or commercial activities pending the time when such property could be precisely zoned through the medium of a zoning map, amounted to the declaration of a moratorium on that type of land development within the "rural use" zoned area‑- a moratorium that could last for a "reasonable" length of time.
We have previously indicated a county not only has the authority to enact interim zoning regulations under RCW 36.70.790,4/ but also has the authority to amend these regulations prior to adopting a permanent zoning ordinance and map.5/ Such enactments may ". . . regulate the use of buildings, structures, and land as between agriculture, industry, residence, and other purposes. . . ." RCW 36.70.750. In so doing, the regulations may include a moratorium on the use of land for particular purposes in a zone by merely not including those purposes as permitted uses in that zone; obviously, this effect can occur regardless of the characterization of the action as a "moratorium."
Webster's Third New International Dictionary defines "moratorium" as, among other things, a ". . . waiting period set by some authority: . . . or a suspension of activity: a temporary ban on the use or production of something. . . ." The failure of RCW 36.70.750 to use this word in defining the effect which a county may have by zoning does not prohibit a county from acting so as to create that effect. When a statute contains a [[Orig. Op. Page 11]] grant of authority to achieve a lawful objective there is included in the grant by implications the doing of such acts as are reasonably necessary to achieve such objectives. State v. Melton, 41 Wn.2d 298, 248 P.2d 892 (1952).
Moratoria on land development of various types and degrees have been upheld in other states. For example, a two year "freeze on land development" brought about by an interim zoning ordinance which ordered that all existing uses be preserved in force and effect while a comprehensive zoning plan was being prepared was not only held by the Wisconsin court to be authorized under certain Wisconsin planning and zoning enabling legislation, but also to be constitutional under the equal protection and due process clauses of the Fourteenth Amendment to the U.S. Constitution in its application to the plaintiff's land, as well as reasonable in length in view of no demonstrable undue hardship suffered by the plaintiff in being unable to develop his land during the plan preparation period. See, Walworth County v. Elkhorn, 27 Wis.2d 30, 133 N.W.2d 257 (1965).
Likewise, the New Jersey Superior (appellate) Court in 1964 upheld a moratorium on the construction throughout a certain community of multiple‑family dwellings by means of a temporary interim zoning ordinance prohibiting that use for a period of thirty-five months, during which time a comprehensive study of community needs was underway which was to ultimately result in the passage of a new zoning ordinance. Campana v. Clark Tp., 82 N.J.Super. 392, 197 A.2d 711 (1964).
The Third District Court of Appeals of California, one year earlier, similarly upheld an interim zoning ordinance which prohibited the subdivision of certain lands and, with limited exceptions, the construction of dwellings on those lands during the formulation of a county-wide water development and conservation plan. Metro Realty v. County of El Dorado, 222 Cal.App.2d 508, 35 Cal.Rptr. 480 (1963).
In another case, a zoning ordinance amendment was upheld which conditioned the issuance of a special permit allowing the subdivision of land upon standards. These standards related to the expansion of municipal services and included a moratorium on land development correlated with the availability to a proposed subdivision of sewers, drainage facilities, schools, parks, recreational facilities, roads, and fire houses. See Golden v. Planning Board of Town of Ramapo, 30 N.Y.2d 359, 285 N.E.2d [[Orig. Op. Page 12]] 291, app. dismissed 409 U.S. 1003, 93 S.Ct. 440 (1972). The statute upon which the Town of Ramapo based its actions in that case was quite similar to our RCW 36.70.550, in that it provided, in part, that:
"For the purpose of promoting the health, safety, morals, or the general welfare of the community, the town board is hereby empowered by ordinance to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes; . . ."6/
The zoning ordinance amendments which were upheld provided that no subdivision permit should be issued unless the proposed development accumulated a set number of "points" computed according to a sliding scale tied into the town's capital budget and improvement plans. By those plans the town was committed to a program of capital improvement under which all land in the town would be available for development within eighteen years ‑ though development could be undertaken in less time as particular facilities became available and a project accumulated the appropriate number of development points. The plaintiffs contended, and were sustained at the appeals court level, that the primary purpose of the amendments was to regulate population growth, an objective not authorized under the zoning enabling legislation. In rejecting plaintiff's contention and upholding the validity of the ordinance amendments, the court held the power to restrict and regulate conferred by the statute included, as a necessary implication, the authority to direct the growth of population for the indicated purposes‑-a necessary concomitant to the authority of local governments to determine the direction in which local development should proceed.
However, even to the extent that chapter 36.70 RCW thus may be viewed as permitting a county to declare or effectuate a moratorium on land development through its zoning actions, we cannot construe it as requiring a county so to act. Under RCW 36.70.550, the planning agency "may . . . cause to be prepared official controls," and "may" draft regulations to implement the comprehensive plan. Under RCW 36.70.640 the [[Orig. Op. Page 13]] board of county commissioners "may" consider an ordinance adopting an official control. Under RCW 36.70 a board "may" establish zoning classifications to regulate the use of buildings, structures, and land. RCW 36.70.790 provides that a board "may" adopt an interim zoning map under certain circumstances; all of these statutes are permissive, enabling. On the other hand, with respect to certain procedural matters, the law uses the word "shall" to direct that a certain action be taken or that a special method be used in accomplishing an action. See, e.g., RCW 36.70.320 ‑ 36.70.380, 36.70.570 ‑ 36.70.680. In interpreting a statute, its words are to be given their ordinary meaning. State v. Roadhs, 71 Wn.2d 705, 430 P.2d 586 (1967). Under a statute providing that any zoning ordinance "may be amended," the word "may" is a word of discretion and not of mandate. Lauterback v. Centralia, 49 Wn.2d 550, 304 P.2d 656 (1956). The principle that the adoption, rejection, and amendment of comprehensive plans and zoning ordinances and maps is a discretionary, not a mandatory, action of a board of county commissioners is well established in Washington law. Lillions v. Gibbs, 47 Wn.2d 629, 289 P.2d 203 (1955), as limited by Fleming v. Tacoma, 81 Wn.2d 292, 502 P.2d 327 (1972).
Nor can it be contended that the provisions of chapter 58.71 RCW, regarding platting and subdivisions, require a county board of commissioners to declare or effectuate a moratorium on land development upon the occurrence of certain conditions. RCW 58.17.070 provides that:
"A preliminary plat of proposed subdivisions and dedications of land shall be submitted for approval to the legislative body of the city, town, or county within which the plat is situated."
Under RCW 58.17.110, the county legislative authority
". . . shall inquire into the public use and interest proposed to be served by the establishment of the subdivision and dedication. It shall determine if appropriate provisions are made in the subdivision for, but not limited to, drainage ways, streets, alleys, other public ways, water supplies, sanitary wastes, parks, playgrounds, sites for schools and schoolgrounds, and shall consider all other relevant facts and determine whether the public interest will be served by the subdivision and dedication. If it finds that the plat makes appropriate provisions for the public health, safety and general welfare and for such drainage ways, streets, alleys, other public ways, water supplies, sanitary wastes, parks, playgrounds, sites for schools and schoolgrounds and that the public use and interest will be served by the platting of such subdivision, then it shall be approved. . . ."
[[Orig. Op. Page 14]]
These statutes have superseded the provisions of the old platting and subdivision law, specifically RCW 58.16.030 and 58.16.060, respectively, but are virtually identical to those earlier enactments. Those sections of the superseded law were construed in Jones v. Town of Woodway, 70 Wn.2d 977, 425 P.2d 904 (1967), to require a platter to seek approval of his or her plat from the city or town legislative body. The court there held that:
". . . the discretionary power to disapprove a plat inheres in its statutory power to approve it.
". . . RCW 58.16 [[chapter 58.16 RCW]]grants discretionary power to the town authorities to consider all facts deemed by it relevant and designed to further the public interest in the adoption or rejection of a plat. We find nothing in the provisions of RCW 58.16 [[chapter 58.16 RCW]]which indicates that the approval of a proposed plat by the town council is mandatory in the absence of an ordinance defining the scope by which the exercise of the town council's discretion will be governed."7/
On the basis of the wording of the new platting and subdivision act, chapter 58.17 RCW, we assume the same conclusion would currently be reached; i.e., that the approval or disapproval of a subdivision plat by a board of county commissioners is a discretionary action. While a board of county commissioners may choose to declare or effectuate a moratorium on land development by not approving a plat because, for instance, it does not make provisions for streets, water supplies, sites for schools, etc., so that the public interest would not be served by its approval, it is not required‑-mandated‑-to do so merely because the county comprehensive plan needs to be updated.
Similarly, no requirement is imposed on a board of county commissioners to declare or effectuate a moratorium on land development under the recently enacted State Environmental Policy Act (SEPA), chapter 43.21C RCW. RCW 43.21C.030 requires that all branches of government of the state, including counties, shall
"(c) Include in every recommendation or report on proposals for legislation presumably including county ordinances and other major actions significantly affecting the quality of the environment, a detailed statement by the responsible official on:
[[Orig. Op. Page 15]]
(i) the environmental impact of the proposed action;
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented;
(iii) alternatives to the proposed action;
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented;"
The major substantive aspects of this act are to be found in RCW 43.21C.020(2), together with RCW 43.21C.060 which provides:
"The policies and goals set forth in this chapter are supplementary to those set forth in existing authorizations of all branches of government of this state, including state agencies, municipal and public corporation, and counties."
Accord, Leschi v. Highway Comm'n, 84 Wn.2d 271, P.2d (1974).
In Stempel v. Dept. of Water Resources, 82 Wn.2d 109, 508 P.2d 166 (1973), the court held the issuance of a water appropriation permit was a "major action" though the actual project was not undertaken by a governmental body. In Eastlake Com. Coun. v. Roanoke Assoc., 82 Wn.2d, 475, 513 P.2d 36 (1973), the court determined that a renewal of a building permit is a type of governmental action that similarly comes within the scope of SEPA. Loveless v. Yantis, 82 Wn.2d 754, 513 P.2d 1023 (1973), stands for the proposition that a board of county commissioners' decision to grant preliminary approval of a subdivision plat constitutes a major action significantly affecting the environment. And Narrowsview Preservation Association v. City of Tacoma, 84 Wn.2d (1974), while holding that no environmental impact statement was required under the facts of that case, indicates the possibility of a zoning amendment constituting a major action that will trigger the application of SEPA.8/
[[Orig. Op. Page 16]]
But such rulings as these do not by any means cause SEPA to require a county to declare or effectuate a moratorium on land development for any reason. As stated in Stempel, supra, at page 118:
". . . SEPA does not demand any particular substantive result in governmental decision making, for it indicates 'other considerations of state policy' (RCW 43.21C.030(2)(a-g)) continue to be the responsibility of the . . . [entities adopting laws or ordinances, or taking actions that significantly affect the environment]"
Therefore, in summary, we must answer your fifth question in the negative. Neither this new environmental policy act nor any other existing law requires a board of county commissioners to declare a moratorium on land development in order to enable the county to update its comprehensive plan before the board either adopts any rezones or other amendments to the county zoning ordinance or approves any plats or subdivisions.
Finally, insofar as this opinion is concerned, you have asked:
Do the provisions of RCW 36.32.330 and/or RCW 58.17.180 limit the time period for bringing a lawsuit testing the validity of planning or zoning actions taken by a board of county commissioners pursuant to chapters 36.70, or plat approvals under chapter 58.17 RCW?
RCW 36.32.330 provides, in pertinent part, that:
"Any person may appeal to the superior court from any decision or order of the board of county commissioners. Such appeal shall be taken within twenty days after the decision or order, and the appellant shall within that time serve notice of appeal on the county commissioners. . . ."
The supreme court has held that where a suit against a county is limited by this statute, the failure to bring such an action within the time set therein entirely disables a person from doing so. Green v. Dunkin, 67 Wn.2d 451, 407 P.2d 985 (1965).
[[Orig. Op. Page 17]]
A number of decisions over the years, however, have determined that RCW 36.32.330, supra, does not apply when a board of county commissioners acts pursuant to a special statute; i.e., a "special purpose" law which imposes duties on the board which are distinct from its ordinary and usual duties. One such decision is the case of State ex rel. Lyon v. Commissioners, 31 Wn.2d 366, 196 P.2d 997 (1948), which involved a zoning variance permit granted by the Pierce County commissioners under a 1935 predecessor to chapter 36.70 RCW, chapter 44, Laws of 1935. Certain landowners who were opposed to the variance attempted to appeal it under RCW 36.32.330, supra, but the supreme court held that they could not do so, saying:
"There can be no question that chapter 44 of the Laws of 1935 (Rem. Rev. Stat. (Sup.), §§ 9322-1 to 9322-12), relating to city, town, county, and regional planning, imposes duties upon the county commissioners distinct from their ordinary and usual duties and is a special statute for a special purpose; and the conclusion is inescapable that the general statute with reference to appeals from decisions of the board of county commissioners [now codified as RCW 36.32.330] is inapplicable to the present case."9/
In enacting legislation on a particular subject, the legislature is presumed to be familiar with not only its own previous legislation relating thereto, but also with court decisions construing such former enactments. In re Levy, 23 Wn.2d 607, 161 P.2d 651 (1945). The provisions of a statute carried forward and reenacted in substance in a later statute are to be construed not as a new enactment but as a law continuing from the first enactment. Kuehl v. Edmonds, 91 Wash. 195, 157 Pac. 850 (1916). Since the prior statute under which counties undertook planning activities (chapter 44, Laws of 1935) was thus considered to be a special statute for a special purpose, it is logical to conclude that chapter 36.70 RCW, the present law dealing with the same functions and responsibilities, is likewise such a statute. From this it follows, in direct answer to your question concerning RCW 36.32.330, that this statute is inapplicable to planning or zoning actions taken by a board of county commissioners under that law. Hence, this part of your [[Orig. Op. Page 18]] sixth question must be answered in the negative.10/ RCW 36.32.330 being inapplicable, the time limitation set forth therein does not limit the time period for bringing a lawsuit testing the validity of planning or zoning actions by a board of county commissioners under chapter 36.70 RCW.
Turning to RCW 58.17.180, however, we arrive at a contrary conclusion. This statute, dealing with the review and approval of plats and subdivisions, provides that:
"Any decision approving or disapproving any plat shall be reviewable for unlawful, arbitrary, capricious or corrupt action or nonaction by writ of review before the superior court of the county in which such matter is pending. The action may be brought by any property owner in the city, town or county having jurisdiction, who deems himself aggrieved thereby: Provided, That application for a writ of review shall be made to the court within thirty days from any decision so to be reviewed. . . ."
Because RCW 58.17.180 sets out a distinct appeal right with respect to decisions of a board of county commissioners under chapter 58.17 RCW, the failure to bring an action within the specified time period will entirely disable a person from bringing such an action. Green v. Dunkin, supra. We consequently answer your sixth question, as it pertains to chapter 58.17 RCW, in the affirmative.
We trust the foregoing will be of assistance to you.
Very truly yours,
GORDON B. DAVIDSON
Assistant Attorney General
*** FOOTNOTES ***
1/See, AGLO 1973 No. 103 [[to Earl F. Angevine, Prosecuting Attorney, Skagit County on November 7, 1973 an Informal Opinion AIR-73603]], copy enclosed.
2/RCW 36.70.780 provides that:
"After the adoption of the first map provided for in RCW 36.70.740, and pending the time that all property within a county can be precisely zoned through the medium of a zoning map, all properties not so precisely zoned by map shall be given a classification affording said properties such broad protective controls as may be deemed appropriate and necessary to serve public and private interests. Such controls shall be clearly set forth in the zoning ordinance in the form of a zone classification, and such classification shall apply to such areas until they shall have been included in the detailed zoning map in the manner provided for the adoption of a zoning map."
3/79 Wn.2d at 622-3.
4/Question (2), supra.
5/Question (3), supra.
6/New York Town Law, § 261.
7/70 Wn.2d 983-4.
8/See also the pending case of Byess, et al. v. Clallam County, Supreme Court Cause No. 43144.
9/31 Wn.2d at 370-71.
10/This does not mean, we should however add, that persons aggrieved by such actions (e.g., the adoption or amendment of a comprehensive plan or zoning ordinance) are without a legal remedy. See, State ex rel. Lyon v. Commissioners, supra, at pp. 371-3, where the court mentioned, as possibilities, (1) the commencement of an independent action; (2) certiorari; and (3) declaratory judgment proceedings.