AGO 1988 No. 24 - Oct 28 1988
SHORELINES MANAGEMENT ACT ‑- SHORELANDS ‑- COUNTIES
A county does not have authority, either under chapter 36.70 RCW or under article 11, section 11 of the state constitution, to impose greater restrictions on aquaculture developments located in areas designated as shorelines of statewide significance, than those standards adopted by the state and relevant local governments pursuant to chapter 90.58 RCW, the Shorelines Management Act of 1971.
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October 28, 1988
Honorable David F. Thiele
Island County Courthouse
P.O. Box 430
Coupeville, WA 98239
Cite as: AGO 1988 No. 24
Dear Mr. Thiele:
By letter previously acknowledged you requested the opinion of this office on the following question:
Does the county have authority under the Planning Enabling Act, chapter 36.70 RCW, or the police power authority under article 11, section 11 of the Washington State Constitution, to impose greater restrictions on aquaculture developments located in areas designated as shorelines of statewide significance under RCW 90.58.030(2)(e)(iii), than are imposed by the Shoreline Management Act and a county's shoreline master program, without obtaining Department of Ecology approval for an amendment to the county shoreline master program?
For the reasons set forth in our analysis, we answer your question in the negative.
Your question addresses two possible sources of a county's authority‑-one statutory and one constitutional. We address the [[Orig. Op. Page 2]] statutory provision first, and then respond to the second part of your question dealing with the constitutional provision.
The answer to the first part of your question involves the interplay between two statutory schemes designed to promote the orderly development of land use regulation in the state of Washington. RCW 36.70 [chapter 36.70 RCW], enacted originally as Laws of 1959, ch. 201, generally is known as the Planning Enabling Act of the State of Washington. This statute authorizes counties to establish controls on land use within the county "to the end of assuring the highest standards of environment for living, and the operation of commerce, industry, agriculture and recreation, and assuring maximum economies and conserving the highest degree of public health, safety, morals and welfare." RCW 36.70.010.
Significantly, while RCW 36.70 [chapter 36.70 RCW] establishes mandatory procedures for development of county land use controls, the substance of any controls actually adopted is left entirely to the county governing body. See RCW 36.70.710.1/
On the other hand, RCW 90.58 [chapter 90.58 RCW], enacted as Laws of 1971, 1st Ex. Sess., ch. 286, creates a statewide scheme to control development of shorelines within the state. Under this statute, generally known as the Shoreline Management Act of 1971, such development controls are not left to local discretion. Rather, the Legislature declared the statutory scheme to be a "cooperative program of shoreline management between local government and the state." RCW 90.58.050. A state agency‑-the Department of Ecology‑-is vested with the authority to adopt guidelines for local governments to follow in developing master programs for the shorelines within their respective jurisdictions. RCW 90.58.060. Local governments in turn develop the master program, or segments of it, for submission to the Department, which has final approval authority over each master program. RCW 90.58.090.
Further, the legislative scheme gives special emphasis to shorelines of statewide significance. For example, the Department has authority under RCW 90.58.090(2) to develop and adopt alternative provisions to a locally submitted master program as it relates to such shorelines. As to other shorelines, while the Department still has the final approval [[Orig. Op. Page 3]] authority, its remedy upon disapproval is to suggest modifications to the local government body, which must then submit a revised master program. RCW 90.58.090(1).
Addressing your question within the context of these two statutory schemes involves a well-established rule of statutory construction: related statutes are to be read in harmony with each other so as to make no provisions superfluous. Tommy P. v. Board of Cy. Comm'rs, 97 Wn.2d 385, 645 P.2d 697 (1982). In this instance, the only way to read these statues in harmony is to conclude that when a conflict arises between a county planning regulation adopted pursuant to RCW 36.70 [chapter 36.70 RCW] and a state‑approved shoreline master program established pursuant to RCW 90.58 [chapter 90.58 RCW], the former must give way to the latter. To hold otherwise would frustrate the clear legislative intent in RCW 90.58 [chapter 90.58 RCW] vesting final policy-making authority on shoreline management issues in the Department of Ecology. We therefore answer the first part of your question in the negative.
Your question also asks whether the county's general police power under article 11, section 11 of the Washington Constitution could be invoked to adopt a county ordinance prohibiting shoreline development activities that the state‑approved master program permits. For somewhat different reasons, we reach the same conclusion and also answer this aspect of your question in the negative.
Article 11, section 11 provides: "Any county ... may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." The power granted to counties by this provision "is as extensive as that of the Legislature, so long as the subject is local and the regulation does not conflict with general laws." Snohomish Cy. v. State, 97 Wn.2d 646, 649, 648 P.2d 430 (1982) (citingState v. Seattle, 94 Wn.2d 162, 165, 615 P.2d 461 (1980)).
An ordinance conflicts with general laws if it forbids what a statute authorizes. State v. Lundquist, 60 Wn.2d 397, 401, 374 P.2d 246 (1962). Your question postulates that (1) a master program has been adopted relative to shorelines of statewide significance located within a county, (2) the program allows for aquaculture developments in the shorelines of statewide significance covered by the program, and (3) the county desires to impose conditions on such developments which conditions are more restrictive than those, if any, in the shorelines master program. This presumed situation seems to present a direct conflict. The county ordinance suggested by your question would purport to forbid (through the imposition of greater restrictions) activities authorized under the state‑approved master program. While the program itself of course is not a [[Orig. Op. Page 4]] statute, it is adopted as an administrative regulation (WAC 173-19-230) in furtherance of a statutory scheme. Thus we conclude that a county ordinance in conflict with the program would be void under article 11, section 11 analysis.
Our conclusion is bolstered by Ritchie v. Markley, 23 Wn. App. 569, 597 P.2d 449 (1979). In that case the Court of Appeals affirmed a trial court ruling voiding a Clallam County ordinance purporting to require a shoreline development permit for an activity specifically exempted from permit requirements of the Shoreline Management Act of 1971. See RCW 90.58.030(3)(e)(iv), (viii), 90.58.140(2).
The court inRitchie reviewed both the county ordinance and the legislative policy embodied in the exemptions granted by the Shoreline Management Act of 1971, and concluded:
The two laws conflict because they reflect opposing policies. The SMA agriculture exemptions foster certain agricultural activities along shorelines and wetlands, and protect them from what the legislature evidently considered to be unnecessary administrative regulation. . . . The ordinance in effect allows the county to prohibit precisely what the statute unconditionally allows, and in so doing violates the state constitution.
23 Wn. App. at 574.
Similarly, the ordinance suggested by your question would limit activity beyond the limitation contained in the state‑approved program and, like the Clallam County ordinance addressed in Ritchie, would therefore violate the constitutional provision.
We trust the foregoing will have been of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
WILLIAM L. WILLIANS
Sr. Assistant Attorney General
*** FOOTNOTES ***
1/The only exception relates to the Columbia River Gorge Compact under RCW 43.97 [chapter 43.97 RCW] and the Columbia River Gorge National Scenic Area Act, Pub. L. No. 99-663, 100 Stat. 4274 (1986). RCW 36.70.980. This exception does not seem to be germane to your inquiry.