Letter Opinion 1970 No. 125

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                                                              September 30, 1970
 
 
 
Honorable Earl F. Angevine
Prosecuting Attorney
Skagit County
Legal Building
Mount Vernon, Washington 98273
                                                                                                             Cite as:  AGLO 1970 No. 125
 
 
Dear Sir:
 
            This is written in response to your letter dated September 23, 1970, requesting our opinion on a question pertaining to the validity of a certain county ordinance relating to platting and subdivisions.
 
                                                                     ANALYSIS
 
            As we understand it from your letter and the materials which were enclosed therewith, the ordinance in question was adopted by the county commissioners on May 25, 1970, and thus is presently in effect.  The ordinance constitutes an amendment to a certain section of a preexisting county subdivision control ordinance which was originally adopted a number of years ago; in essence, it prohibits subsequent changes in any portion of a final plat, after the filing thereof, without the prior approval of the county planning commission.
 
            You have indicated that assertions have been made that this ordinance is invalid as being in conflict with the provisions of chapter 271, Laws of 1969, Ex. Sess., the state's new comprehensive platting and subdivision law.  Of course, it would be somewhat inappropriate for this office to attempt to issue an official legal opinion on a question pertaining to the validity of a county ordinance which has already been adopted and is presently in effect.  Under the provisions of chapter 7.24 RCW, the uniform declaratory judgments act, the appropriate way for any persons asserting the invalidity of a duly enacted ordinance to test this question would be by a declaratory judgment action in court.  If and when such an action is commenced, the attorney general would be required, under RCW 7.24.110, to be served with a copy of the pleadings ‑ and we would then be entitled to be heard in defense of the ordinance should we desire to appear in the case.
 
             [[Orig. Op. Page 2]]
            Of course, the usual test as to the validity of a municipal ordinance which is asserted to be in conflict with state law is the test of whether the ordinance prohibits something which the state law expressly permits, or, conversely, permits something which the state law prohibits.  See City of Bellingham v. Schampera, 57 Wn.2d 106, 356 P.2d 292 (1960).  Moreover,

 
            "'. . . the fact that a city charter provision or ordinance enlarges upon the provisions of a statute by requiring more than the statute requires, does not create a conflict unless the statute expressly limits the requirements.  . . '" Lenci v. Seattle, 63 Wn.2d 664, 671, 388 P.2d 926 (1964).1/
 
             Thus, the mere fact that the Skagit county ordinance in question may be more restrictive than are the provisions of chapter 271, Laws of 1969, Ex. Sess., with respect to platting and subdivisions, is not fatal to the ordinance since the legislature, in enacting the new state law, did not expressly state that subsequent changes could be made by a subdivider in his final plat without approval of the municipal authorities having jurisdiction.  In fact, chapter 271, Laws of 1969, Ex. Sess., is completely silent as to the regulation of subsequent changes in a final plat, once it has been approved.
 
            Furthermore, it seems quite clear from a reading of the provisions of chapter 271, Laws of 1969, Ex. Sess., supra, that the legislature fully intended to allow counties and cities to retain their preexisting subdivision control ordinances, and to make future amendments thereto in the manner authorized by general law.  In this regard, § 33, chapter 271, Laws of 1969, Ex. Sess., provides as follows:
 
            "All ordinances and resolutions enacted at a time prior to the passage of this act by the legislative bodies of cities, towns, and counties and which are in substantial compliance with the provisions of this act, shall be construed as valid and may be further amended to include new provisions and standards as are authorized in general law."
 
             [[Orig. Op. Page 3]]
            Therefore, it is our best judgment that the provisions of the recent amendment to the Skagit county subdivision control ordinance which you have brought to our attention are legally defensible ‑ and should withstand challenge if tested in court in a declaratory judgment action as described above.
 
            It is hoped that the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/Quoting from State ex rel. Isham v. Spokane, 2 Wn.2d 392, 398, 98 P.2d 306 (1940).