AGLO 1974 No. 7 - Jan 17 1974
PLATS AND PLATTING ‑- SUBDIVISIONS ‑- APPLICABILITY OF CHAPTER 271, LAWS OF 1969, 1st EX. SESS., TO CERTAIN PREVIOUSLY PLATTED AREAS
The provisions of chapter 271, Laws of 1969, 1st Ex. Sess. (now codified as chapter 58.17 RCW) are applicable to the sale of undeveloped lots in an area previously platted under chapter 58.08 RCW.
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January 17, 1974
Honorable Charles R. Byrd
Okanogan County Court House
Okanogan, Washington 98840 Cite as: AGLO 1974 No. 7
By letter previously acknowledged you have requested our opinion regarding the applicability of chapter 271, Laws of 1969, 1st Ex. Sess. (now codified as chapter 58.17 RCW), and of the Okanogan County Platting Ordinance enacted pursuant thereto, under certain described circumstances.
We respond to this request in the manner set forth in our analysis.
In submitting your request for our opinion you have advised us that an area known as Ruby, in Okanogan county, was originally (and apparently, properly) platted in approximately 1890, pursuant to § 2328 of the Territorial Code of 1881, originally enacted by the 1857 territorial legislature and since codified as chapter 58.08 RCW. Although an unincorporated town of sorts did grow, however, the area was never developed fully according to this original plat. Instead, the development contemplated by that plat has long since been abandoned and the property has reverted to its natural state which is currently used, for the most part, as grazing land.
You have further informed us that a major portion of this property has now been acquired by a single owner who plans to develop it and sell lots to the public. However, instead of resubdividing for this purpose he plans merely to utilize the original plat but, in order to comply with current county health department sewage disposal and water supply regulations, he will require each purchaser to buy the lots described therein in combined blocks of four contiguous lots at a time.
The question presented, in essence, is whether that approach by this developer will excuse him from a compliance with the requirements of chapter 271, Laws of 1969, Ex. Sess., an act since codified as chapter 58.17 RCW and [[Orig. Op. Page 2]] commonly known as the platting, subdivision and dedication of land act of 1969. In our opinion, it will not.
By its terms, this new law applies to every subdivision of land within the state of Washington. See, RCW 58.17.030. A subdivision is defined by RCW 58.17.020 (1) as
". . . the division of land into five or more lots, tracts, parcels, sites or divisions for the purpose of sale or lease and shall include all resubdivision of land."
RCW 58.17.200 then provides that:
"Whenever any parcel of land is divided into five or more lots, tracts, or parcels of land and any person, firm or corporation or any agent of any of them sells or transfers, or offers or advertises for sale or transfer, any such lot, tract, or parcel without having a final plat of such subdivision filed for record, the prosecuting attorney shall commence an action to restrain and enjoin further subdivisions or sales, or transfers, or offers of sale or transfer and compel compliance with all provisions of this chapter. The costs of such action shall be taxed against the person, firm, corporation or agent selling or transferring the property."
In addition, RCW 58.17.300 states that:
"Any person, firm, corporation, or association or any agent of any person, firm, corporation, or association who violates any provision of this chapter or any local regulations adopted pursuant thereto relating to the sale, offer for sale, lease, or transfer of any lot, tract or parcel of land, shall be guilty of a gross misdemeanor and each sale, offer for sale, lease or transfer of each separate lot, tract, or parcel of land in violation of any provision of this chapter or any local regulation adopted pursuant thereto, shall be deemed a separate and distinct offense."
[[Orig. Op. Page 3]]
In using the term "land" in these statutes without any antecedent qualification, the 1969 legislature in enacting this law followed basically the same pattern as it had some thirty-two years earlier when it enacted the predecessor to this new platting law, chapter 186, Laws of 1937, the provisions of which were expressly repealed by § 36 of the new law. Noting this aspect of the prior law in AGO 57-58 No. 88 [[to Robert A. Hensel, Prosecuting Attorney, Douglas County on June 26, 1957]], copy enclosed, we said:
"The legislature in § 1, chapter 186, Laws of 1937, by using the word 'land' without an antecedent qualification, must necessarily have intended reference to all land regardless of previous supdividing [[subdividing]]and platting which might have been made as to certain property. . . ."
To the extent that this analysis bears upon the relationship between a modern platting law such as either the 1969 act here under consideration or, possibly the 1937 law and an old style platting law such as the 1857 act under which the area described in your letter was platted in 1890 or thereabouts, we believe that it is correct. While we have found no prior decisions of our own state supreme court which directly support this view, our research discloses that itis amply supported by analogy to well-established principles of zoning law and to those few decisions we have found from other states that are directly in point within the context of platting itself.1/
One such established principle is that a use of land which was merely contemplated or intended, but not realized as of the effective date of a zoning regulation prohibiting such use, is not protected as a preexisting nonconforming use. Parks v. Board of County Commissioners [[Orig. Op. Page 4]] of Tillamook County, 95 Adv. 929, 501 P.2d 85 (Ore. App. 1972);Phoenix City Council v. Canyon Ford, Inc., 12 Ariz.App. 595, 473 P.2d 797 (1970); anno: 101 C.J.S. § 185. Nor is a use so protected which was abandoned or discontinued prior to the enactment of the zoning ordinance. Parks v. Board of County Commissioners, supra; anno: 101 C.J.S. § 187. And thirdly, it has also been specifically held that even where a tract of property was previously platted, and the plat was properly approved and/or filed in accordance with the platting law, this does not create a preexisting nonconforming use or otherwise excuse compliance with a subsequently enacted zoning regulationwhere there had been no actual construction of buildings and improvements upon the property. Ardolino v. Florham Park Board of Adjustment, 24 N.J. 94, 130 A.2d 848 (1957), andState v. Dodge, 113 Ohio App. 118, 177 N.E. 2d 515 (1960).
The principle underlying all of these zoning cases is that circumstances and needs in regard to land use planning change with the times. Both the pattern of a community and ideas of community growth change ‑ often radically. Communities in their planning must not, therefore, be tied to the dead hand of the past. What may have been an adequately planned subdivision at the time its lots were first delineated on a plat may be totally inadequate years later when the decision is finally made to develop and build. Accordingly (in the words of one court), to rule that subsequent regulations do not apply in such a case would be to permit
"'. . . a property owner, by the process of map filing, . . . [to] completely foreclose a zoning authority from ever taking any action with respect to the land included in the map, regardless of how urgent the need for regulation might be. . . .'" Sherman-Colonial Realty Corporation v. Goldsmith, 155 Conn. 175, 230 A.2d 568, 572 (1967), quotingCorsino v. Grover, 148 Conn. 299, 170 A.2d 267 (1961).2/
[[Orig. Op. Page 5]]
This same principle applies equally to a case, such as here, of subsequent modern day subdivision platting regulations. Accord,Sherman-Colonial Realty Corporation v. Goldsmith, supra. This is particularly true in view of the dramatic divergence in purpose between modern subdivision regulations such as those contained in chapter 58.17 RCW,supra, and those old platting laws of the type exemplified by chapter 58.08 RCW. Lake Intervale Homes, Inc. v. Parsippany-Troy Hills, supra.
Those old platting acts were "hardly more than a conveyancing aid." Lake Intervale Homes, Inc.,supra, citing Magnolia Development Co. Inc. v. Coles, 10 N.J. 223, 89 A.2d 664 (1952). Their purpose was merely
". . . (a) to provide a method for officially filing maps so that future conveyancing instruments might refer to a parcel of realty by reference to the lot numbers as delineated on the map, and (b) to set forth sound engineering standards for maps so filed so as to avoid surveying errors, . . . "Lake Intervale homes, Inc., supra, 147 A.2d at 33.3/
Modern subdivision platting regulation stand out in marked contrast. It has now been recognized that haphazard growth can have a disastrous effect upon the public health, safety and welfare. See,Lake Intervale Homes, Inc., supra, 147 A.2d at 35. As explained by the court therein:4/
"'To particularize, the public health, safety, order, and prosperity are dependent upon the proper regulation of municipal life. The free flow of traffic with a minimum of hazard of necessity depends upon the number, location [[Orig. Op. Page 6]] and width of streets, and their relation to one another, and the location of building lines; and these considerations likewise enter into the growth of trade, commerce, and industry. Housing, always a problem in congested areas affecting the moral and material life of the people, is necessarily involved in both municipal planning and zoning. And it is essential to adequate planning that there be provision for future community needs reasonably to be anticipated. We are surrounded with the problems of planless growth. The baneful consequences of haphazard development are everywhere apparent. There are evils affecting the health, safety and prosperity of our citizens that are well-nigh insurmountable because of the prohibitive corrective cost. To challenge the power to give proper direction to community growth and development in the particulars mentioned is to deny the vitality of a principle that has brought men together in organized society for their mutual advantage. . . .'"
In accordance with such recognition, it has been further accepted that modern subdivision regulations are to be viewed as an entegral part of the land use planning process along with zoning regulations and their underlying comprehensive plan.5/ These modern laws thus generally [[Orig. Op. Page 7]] set out to guide land development through a planning agency and are enforced, interalia, through the power to withhold the privilege of public recording from those plats that do not meet established requirements and standards. Local Planning Administration, International City Managers' Association, Chicago, Illinois (1948) p. 248, and Michigan Local Planning Commissioner's Handbook (1964) p. 25.
Chapter 58.17 RCW is just such a modern regulation. See,Municipal and Regional Planning in Washington State, Report No. 170, June 1969, Bureau of Governmental Research & Services, University of Washington, Seattle, in cooperation with the Association of Washington Cities, pp. 29 et seq. The express purpose of this statute, as set forth in RCW 58.17.010, is
". . . to regulate the subdivision of land and to promote the public health, safety and general welfare in accordance with standards established by the state to prevent the overcrowding of land; to lessen congestion in the streets and highways; to provide for adequate light and air; to facilitate adequate provision for water, sewerage, parks and recreation areas, sites for schools and schoolgrounds and other public requirements; to provide for proper ingress and egress; and to require uniform monumenting of land subdivisions and conveyancing by accurate legal description."
Among other things chapter 58.17 RCW provides for the submission of a preliminary plat for approval by the county commissioners or other local legislative body (RCW 58.17.070); a public hearing thereon (RCW 58.17.090); a review of the proposal by the local planning commission so as to enable it to advise the legislative body concerning conformance of the proposed subdivision with the applicable comprehensive plan and with "planning standards and specifications . . ." (RCW 58.17.100); and finally, approval of the subdivision by the local legislative body only after its consideration of a number of factors such as those outlined in the above quoted provision of RCW 58.17.010. Without such prior approval the plan cannot be filed (RCW 58.17.190).
In the words of the court inLake Intervale Homes, Inc., supra, it is readily to be perceived that there is [[Orig. Op. Page 8]] little overlap in the purposes of the old platting law (chapter 58.08 RCW) under which the area involved in your question was originally platted in 1890, and those of this modern, 1969, state act. As contrasted with the former, this latter act
". . . was designed to afford municipalities desiring the advantages of its provisions to enact comprehensive regulatory standards which would facilitate sound and orderly future municipal growth along preconceived lines, in short a planned community growth." Lake Intervale Homes, Inc., Ibid.
The greatly expanded scope and purpose of the typical modern platting regulation is also evident in the Okanogan County Platting Ordinance as adopted under chapter 58.17 RCW. After beginning with a statement of purpose which is almost identical to RCW 58.17.010,supra, this ordinance then proceeds to set up the procedures contemplated by the state act for Okanogan county and to provide for review of each proposed subdivision regarding such areas of concern as conformance to the comprehensive plan and zoning (§ 40), topographical errors, hazards and protective improvements (§ 41), fire protection facilities and water supply (§ 42), subdivision roads (§ 43), design of blocks to assure traffic safety (§ 44), lot access (§ 45), lot line angles (§ 47), sidewalks (§ 48), drainage and storm sewer easements (§ 49), utility easements (§ 50), underground utility installation where practical (§ 51), and numerous other similar considerations.
In our opinion it would be just as absurd and unreasonable to hold that the mere filing of a plat in 1890 under the provisions of the old type platting law contained in chapter 58.08 RCW now prevents the application of a subsequent modern subdivision platting regulation as it would to hold that such a previous filing precludes subsequent application of zoning regulations. Lake Intervale Homes, Inc., supra. As the court in that case put it:
". . . Subdivision control, like zoning, is an implementing tool of planning. We can perceive no reason for concluding that filing of a map under the Old Map Act does [[Orig. Op. Page 9]] not prevent application of the one power but it does the other. Both are necessary to abolish the social disease of blight, the essential difference between them being the difference between innoculation and surgery."
The court then concluded as follows:
"Thus, at least where virgin lands are concerned, [the New Jersey Act] is applicable to instances where a plat plan of the tract had previously been approved and filed pursuant to the Old Map Act. . . ." (147 A.2d at 37.)
Similarly, the Connecticut court in Sherman-Colonial Realty Corp., supra, reached this same conclusion saying:
". . . The mere filing of maps for the subdivision of a parcel of real estate does not necessarily immunize the subject property from the operative effect of subsequent subdivision regulations. . . ." (230 A.2d at 572.)
Likewise, the New Hampshire court in Blevens v. City of Manchester, supra, expressed itself on this point as follows:
". . . Hence the fact that the plaintiffs have recorded plans approved under a prior statute, which show 'paper streets' or unaccepted streets or that some lots previously sold are upon accepted streets, give the plaintiffs no vested right to demand that future sales shall be beyond the purview of the subdivision law and ordinance. What may have been an adequate proposed development when the plaintiffs' plan was first recorded may be clearly insufficient to municipal needs today. . . ."
One final point deserves mention before we complete this opinion. To some it might appear, at least at first glance, that an application of chapter 58.17 RCW and the Okanogan County Platting Ordinance to the circumstances above described would result in a retrospective application of this new law ‑ contrary to the [[Orig. Op. Page 10]] well-settled rule that retroactive effect is not to be given to a statute unless such an intent on the part of the legislature is clearly stated within the statute itself. See, e.g.,Gillis v. King County, 42 Wn.2d 373, 255 P.2d 546 (1953), and Pape v. Dept. Labor & Ind., 43 Wn.2d 736, 264 P. 2d 241 (1953), in the second of which the Washington court, citing 50 Am.Jur. 492, Statutes, described a retrospective law, in the legal sense, as
". . . one which takes away or impairs vested rights acquired in the existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. . . ."
In view of the dramatic substantive differences between the "old" platting law (chapter 58.08 RCW) here involved and the new one (chapter 58.17 RCW), together with the absence in this case of any actual development of the old plat described in your letter, it does not appear to us that an application of the "new" platting law to this case would, in any way, violate the spirit of this principle of statutory construction. In reality, all that we are here saying is that in order, henceforth, to sell lots in a previously undeveloped subdivision covered by a plat filed under chapter 58.08 RCW, a developer will be required to comply with the provisions of the modern new platting law in effect at the time of sale.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
WILLIAM H. CLARKE
Assistant Attorney General
*** FOOTNOTES ***
1/In concluding, based upon these decisions and the reasoning contained therein, that the developer involved in your question will be required, notwithstanding the earlier plat of the land he now desires to develop and sell, to comply with chapter 58.17 RCW in order to sell the lots he has in mind, we do not mean to imply that property which has been platted under the intervening 1937 law (chapter 186, supra) is also now required to be replatted in order to be sold. That is a question not raised by the facts which underly your request and, hence, we simply do not reach it here.
2/See, also, The Law of Subdivision, Michie Company, Charlottesville, Virginia, 1963, § 50, p. 107;Blevens v. Manchester, 103 N.H. 284, 170 A.2d 121 (1961), andLake Intervale Homes, Inc. v. Parsippany-Troy Hills, 28 N.J. 423, 147 A.2d 28 (1958).
3/That the 1857 territorial law now codified as chapter 58.08 RCW was precisely such a limited act is evident from the fact, for instance, that it required no prior approval by any governmental agency as to thesubstance of a plat filed thereunder.
4/Quoting from Mansfield & Swett, Inc. v. Town of West Orange, 120 NJL 145, 150-151, 198 A. 225, 229 (1938).
5/"An ancient test for sanity was conducted by having the person to be examined bail out a trough into which water was flowing from an open spigot. Unless the person first turned off the spigot he was judged insane. What, then, can be said for the city that spends large sums of money to widen streets that were orginally laid out too narrow and at the same time permits new subdivisions to be laid out with streets of inadequate width? . . ." Local Planning Administration, International City Managers' Association, Chicago, Illinois (1948) at p. 248.