Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1966 No. 84 -
Attorney General John J. O'Connell


1. A school district does not have to obtain a conditional use permit in order to construct a school building on a particular site in an unincorporated area of a county which has adopted the provisions of the planning enabling act (chapter 36.70 RCW) except where the district desires to qualify for state financial assistance in construction of said building.

2.         A school district does not have to obtain a building permit in order to construct a school building on a particular site in an unincorporated area of a county except where the district desires to qualify for state financial assistance in construction of said building.        

3.         When a school district for any reason applies to the county for a conditional use permit or a building permit it must pay the fees otherwise chargeable to other applicants.

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                                                                   April 27, 1966

Honorable Robert E. Schillberg
Prosecuting Attorney
Snohomish County Court House
Everett, Washington

                                                                                                                Cite as:  AGO 65-66 No. 84

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on questions which we paraphrase as follows:

            1. Must a school district obtain a conditional use permit in order to construct a school building on a particular site in an unincorporated area of a county which has adopted the provisions of the planning enabling act (chapter 36.70 RCW)?

            2. Must a school district obtain a building permit from the county in which it proposes construction of a school building where the county has adopted and has in effect a building code?

            3. In the event questions 1 or 2 are answered in the affirmative, what fees should be paid by the school district seeking  [[Orig. Op. Page 2]] to obtain the conditional use permit and/or building permit?

            We answer your questions in the manner set forth in our analysis.


            Preliminarily, we should explain that we regard your questions to be general, and unqualified by any considerations of eligibility of the subject school district for state financial aid in regard to its prospective building program.  Accordingly, we merely point out in passing that irrespective of what may or may not be required in any event by applicable state law, certain rules promulgated by the state board of education expressly condition the granting of state aid upon the furnishing of proof by the applicant district of (1) approval of the proposed building by "such local planning commission or authority as may be established within the territory of the district";1/ and (2) conformity of the building plan with requirements of the building code of the municipality involved.2/

             Question (1):

            The planning enabling act, now codified as chapter 36.70 RCW, was enacted by the legislature in 1959.3/   The purpose of the act is spelled out in § 1 (RCW 36.70.010) as follows:

            "The purpose and intent of this chapter is to provide the authority for, and the procedures to be followed in, guiding and regulating the physical development of a county or region through correlating both public and private projects and coordinating their execution with respect to all subject matters utilized in developing and servicing land, all 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."

             [[Orig. Op. Page 3]]

            However, the legislature clearly left to the several boards of county commissioners the decision as to whether or not to adopt the provisions of the act.  See, §§ 93 and 64, chapter 201, Laws of 1959 (RCW 36.70.930-36.70.940).

            Your first question, as above paraphrased, presupposes that the county commissioners of the county in question have elected to come under the provisions of this 1959 planning enabling act.  Accordingly, we may resort to the applicable provisions thereof in answering your specific inquiry.

            The first provision to be noted is § 2 (7) (RCW 36.70.020 (7)), which defines the term "conditional use" as follows:

            "(7) 'Conditional use' means a use listed among those classified in any given zone but permitted to locate only after review by the board of adjustment, or zoning adjustor if there be such, and the granting of a conditional use permit imposing such performance standards as will make the use compatible with other permitted uses in the same vicinity and zone and assure against imposing excessive demands upon public utilities, provided the county ordinances specify the standards and criteria that shall be applied."

            Authority to issue "conditional use permits" is vested in a body known as a board of adjustment pursuant to § 81 (RCW 36.70.810) which provides, in material part:

            "The board of adjustment, subject to appropriate conditions and safeguards as provided by the zoning ordinance or the ordinance establishing the board of adjustment, if there be such, shall hear and decide:

            "(1) Applications for conditional uses or other permits when the zoning ordinance sets forth the specific uses to be made subject to conditional use permits and establishes criteria for determining the conditions to be imposed;

            ". . ."

            Next to be noted is § 32 (RCW 36.70.320) which sets forth  [[Orig. Op. Page 4]] the following requirement relative to the adoption of a comprehensive plan:4/

            "Each planning agency shall prepare a comprehensive plan for the orderly physical development of the county and may include any land outside its boundaries which, in the judgment of the planning agency, relates to planning for the county.  The plan shall be referred to as the comprehensive plan and, after hearings by the commission and approval by motion of the board, shall be certified as the comprehensive plan.  Amendments or additions to the comprehensive plan shall be similarly processed and certified."

            Against this background of general provisions and statutorily defined terms, we may now read with some understanding the provisions of § 54 of the act (RCW 36.70.540), which specifically relates to the construction of public buildings in areas to which a comprehensive plan applies.  This statute provides:

             [[Orig. Op. Page 5]]

            "Whenever a board has approved by motion and certified all or part of a comprehensive plan, no street, square, park or other public ground or open space shall be acquired by dedication or otherwise, no street shall be disposed of, closed or abandoned, and no public building or structure shall be constructed or authorized to be constructed in the area to which the comprehensive plan applies until its location, purpose and extent has been submitted to and reported upon by the planning agency.  The report by the planning agency shall set forth the manner and the degree to which the proposed project does or does not conform to the objectives of the comprehensive plan.  If final authority is vested by law in some governmental officer or body other than the board, such officer or governmental body shall report the project to the planning agency and the planning agency shall render its report to such officer or governmental body.  In both cases the report of the planning agency shall be advisory only.  Failure of the planning agency to report on such matter so referred to it within forty days or such longer time as the board or other governmental officer or body may indicate, shall be deemed to be approval."

            The term "board" as used in this section clearly refers to the board of county commissioners.  RCW 36.70.020 (2).  On the other hand, it is our opinion that the term "some governmental officer or body other than the board" has reference to the situation where the public building in question is to be constructed by a political subdivision or taxing district other than the county itself.

            The phrase "final authority" therefore strongly suggests a legislative recognition that a governmental body having the power to acquire sites to construct public buildings thereon is the "final authority" in regard to the location of such building.  Unquestionably, the board of directors of a school district are vested with such power.  See, RCW 28.58.040 and 28.58.060; RCW 28.63.181 and 28.63.185; also, State ex rel. Lukens v. Spokane School Dist., 147 Wash. 467, 266 Pac. 189 (1928).5/

             [[Orig. Op. Page 6]]

            Following from this analysis of § 54, chapter 201, Laws of 1959 (RCW 36.70.540),supra, it is to be seen that prior to construction of a school building in an area to which a comprehensive plan applies, the school directors, though vested with final authority, must nevertheless submit the proposed location, purpose and extent to the county planning agency.  However, the statute expressly states that the report of the planning agency "shall be advisory only."

            Accordingly, once this procedure has been complied with, it is our opinion that the school district may proceed with the construction without, additionally, obtaining a "conditional use permit."  We arrive at this conclusion for several reasons:

            (1) In the first place, nowhere in the entire planning enabling act is it expressly stated that a governmental body shall be required to obtain a conditional use permit before constructing a public building on a particular site.  The only statutory condition precedent to construction is compliance with RCW 36.70.540, supra.  Since the report of the planning agency under RCW 36.70.540 is "advisory," its approval of a proposal is not a condition precedent to lawful construction.  Obviously, a well reasoned disapproval should be taken by the school directors as persuasive in regard to their making a final choice as to a site.  But clearly, by expressly making the planning agency's report "advisory" the legislature, in our opinion, manifested an intent to allow the construction of public buildings at sites so chosen by the governmental officer or body having "final authority" notwithstanding any objections made thereto by the planning agency.

            (2) Secondly, reference to the statutory definition of "conditional use" as contained in RCW 36.70.120 (7), supra, indicates that a "conditional use" is a use which is permitted within a given zone by provision of the zoning ordinance, provided that approval of the board of adjustment is obtained.

             [[Orig. Op. Page 7]]

            Therefore, to speak of a school district applying for a conditional use permit is to suggest that the applicable zoning ordinance, adopted pursuant to the comprehensive plan, specifically lists school buildings among the uses classified for a given zone.  However, if a school building can be constructed upon a site chosen by the school directors notwithstanding disapproval of the county planning agency, RCW 36.70.540,supra, it follows that no zoning ordinance adopted by the board of county commissioners pursuant to the comprehensive plan of the planning agency could effectively classify areas or zones in which school buildings might or might not be constructed.

            (3) Thirdly, the very fact that a school district has the power to acquire its construction site by exercise of eminent domain is, in our opinion, most persuasive.  Certainly, if a school district selects a site and obtains a judicial decree of public use and necessity for school construction thereon, it seemingly thereby would have obtained the right to go ahead and construct a school building without further having to satisfy the county planning agency or board of adjustment as to the justifications for a school building on the particular site.

            Question (2):

            By your second question you have asked whether a school district must obtain a building permit from the county in which it proposes construction of a school building where the county has adopted and has in effect a building code.

            This question was answered in the affirmative by the attorney general in AGO 49-51 No. 238 [[to Bureau of Governmental Research and Service on March 22, 1950]].  An earlier opinion dated February 28, 1947, general in AGO 49-51 No. 238.  An earlier opinion dated to state auditor Cliff Yelle [[1947-48 OAG 17e]], in which it had been concluded that a municipality has no power or right to require that buildings constructed by the state conform with the municipal building code, was distinguished on the ground that school districts "do not stand upon the same high plane of sovereignty as the state or its institutions."

            In AGO 49-51 No. 238,supra, principal reliance was placed upon the decision of the California supreme court in Pasadena School District v. Pasadena, 166 Cal. 7, 134 Pac. 985 (1913).  However, the California court has subsequently overruled the Pasadena case in the case ofHall v. City of Taft, 47 Cal.2d  [[Orig. Op. Page 8]] 177, 302 P.2d 574 (1956).  TheTaft rule has been subsequently followed in California, and, as well, in cases from other jurisdictions.  See,Town of Atherton v. Superior Court, 159 Cal.App. 2d 417, 324 P.2d 328 (1958);Tustin Heights Ass'n. v. Bd. of Supervisors, 170 Cal.App. 2d 619, 339 P.2d 914 (1959); Board of Regents of Universities, Etc. v. City of Tempe, 88 Ariz. 299, 356 P.2d 399 (1960);Green County v. City of Monroe, 3 Wis. 2d 196, 87 N.W. 2d 827 (1958); andKaveny v. Bd. of Com'rs of Town of Montclair, 71 N.J. Super. 244, 176 A.2d 802 (1962).

            We are persuaded by the reasoning of these decisions to conclude that the better rule of law is that a school district is not legally required to obtain a building permit from the county in which it proposes construction of a school building.  AGO 49-51 No. 238,supra, to the contrary, is hereby overruled.

            Question (3):

            Your final inquiry asks what fees must be paid by a school district seeking to obtain a conditional use permit and/or building permit.  If, notwithstanding the absence of a general legal requirement that it obtain such permits (as explained above), a school district nevertheless decides to do so‑-in order, perhaps, to qualify for state financial aid as described at the outset‑- it would, in our opinion, be governed by the same fee requirements as apply to the case of private applicants.  We simply find no basis in the law for any other conclusion.

            We trust the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/WAC 180-28-320.

2/WAC 180-28-365.

3/Chapter 201, Laws of 1959.

4/The term "comprehensive plan" is defined by § 2 (6) (RCW 36.70.020 (6)) to mean:

            ". . . the policies and proposals approved and recommended by the planning agency or initiated by the board and approved by motion by the board (a) as a beginning step in planning for the physical development of the county; (b) as the means for coordinating county programs and services; (c) as a source of reference to aid in developing, correlating, and coordinating official regulations and controls; and (d) as a means for promoting the general welfare.  Such plan shall consist of the required elements set forth in section 33 and may also include the optional elements set forth in section 35 hereof which shall serve as a policy guide for the subsequent public and private development and official controls so as to present all proposed developments in a balanced and orderly relationship to existing physical features and governmental functions."

5/Furthermore, school districts are specifically given the power of eminent domain.  The applicable statute is RCW 8.16.010, which provides in part:

            "Whenever any school district shall select any real estate as a site for a schoolhouse, . . . such school district shall have the right to take and acquire title to such real estate for use as a schoolhouse site. . ."