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Bob Ferguson

AGLO 1973 No. 1 -
Attorney General Slade Gorton


Discussion of legal significance of subdivision of tracts previously subdivided (a) into 5 or more lots; and (b) into 4 or less lots under chapter 58.17 RCW.

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                                                                  January 2, 1973

Honorable Earl F. Angevine
Skagit County Prosecuting Attorney
Court House Annex
Mount Vernon, Washington 98273                                                                                                                 Cite as:  AGLO 1973 No. 1

Dear Sir:
            By letter dated December 19, 1972, you have asked us to review your opinion of November 2, 1972, to the Skagit County Planning Director in which you answered both of the following questions in the negative:
            "May a property owner divide real property into tracts of five acres or more and then subdivide each of these tracts into four one‑and-one quarter acre lots?  If the answer to this question is in the negative, may the tracts of five acres or more be conveyed to others, thereby permitting them to subdivide into four one‑and-one quarter acre lots?"
            As we read the full text of your November 2, 1972, opinion, it appears to us that you have reasoned as follows:
            (1) The first division of the subject land into an unspecified number of tracts of five acres or more constitutes (in your judgment) either a "subdivision" or a "short subdivision," depending upon the number of tracts resulting from the division, notwithstanding that RCW 58.17.040 declares the provisions of chapter 58.17 RCW to be inapplicable to:
            ". . .
            "(3) Divisions of land into lots or tracts none of which are smaller than five acres and not containing a dedication unless the governing authority of the city, town or county in which the land is situated shall have by ordinance provided otherwise."
             [[Orig. Op. Page 2]]
            (2) Therefore, the second division of the resulting tracts into four one‑and-one‑quarter acre lots should, in your opinion, be deemed to be prohibited by paragraph 1.09 of Skagit County's Short Subdivision Ordinance No. 5544, wherein the following requirement is imposed:
            "Additional short subdivisions on the remainder of such lands will not be eligible for approval for five years unless the total divisions are less than 4, in such instances, the total divisions shall not total over 4 during the 5-year period."
            Of course, as you are aware, the legal basis for this ordinance is to be found in RCW 58.17.060 which provides as follows:
            "Unless the legislative body of a city, town or county adopts regulations and procedures, and appoints administrative personnel for the summary approval of short plats and short subdivisions, the provisions of this chapter shall not apply to short subdivisions.  Such regulations may contain wholly different requirements than those governing the approval of preliminary and final plats of subdivisions but shall not require surveys and monumentations and a filing of a short plat for record in the office of the county auditor unless there is a dedication:  Provided, That such regulations must contain a requirement that land in short subdivisions may not be further divided in any manner within a period of five years without the filing of a final plat: Provided further, That such regulations are not required to contain a penalty clause as provided in RCW 36.32.120 and may provide for wholly injunctive relief."  (Emphasis supplied.)
            With this in mind, we think it necessary, in order to determine the correctness of your negative answers to the two questions above stated, to know whether the first division of the subject property was a division of that property into five or more tracts (and thus, a subdivision)  [[Orig. Op. Page 3]] or whether it resulted in a division of the subject property into four or less tracts (and thus, instead, resulted in the creation of a short subdivision).  If the first division of the property resulted in the creation of a subdivision rather than a short subdivision, then the second division would not constitute a further division of land in a short subdivision within the meaning of RCW 58.17.060, supra.  On the other hand, if the first division of the subject property did result in the creation of a short subdivision which was, itself, regulated by a duly enacted county or city ordinance under either RCW 58.17.040 (3), supra, or RCW 58.17.060, supra, then, of course, the second division would (as you have concluded) constitute a further division of a previously created short subdivision to which both the underscored portion of RCW 58.17.060, supra, and the terms of paragraph 1.09 of the Skagit County Short Subdivision Ordinance would apply.1/

             It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***
1/We recognize that this conclusion, distinguishing as it does between the legal significance of an initial division of land into a subdivision (five or more tracts) and a short subdivision (four or less tracts) may appear somewhat anomalous.  However, to the extent that this is so, one answer might well be for your commissioners to amend your ordinance so as to cause it to speak both to the "second level" division of short subdivisions (as now) and to the division into short subdivisions of tracts in a previously created full subdivision.