Bob Ferguson
Other LanguagesAGLO 1970 No. 134 -
Attorney General Slade Gorton
- - - - - - - - - - - - -
October 16, 1970
Honorable Anton J. Miller
Prosecuting Attorney
Pacific County
P.O. Box 563
Raymond, Washington 98577
Cite as: AGLO 1970 No. 134
Dear Sir:
This is written in response to your recent letter requesting an opinion of this office on a question pertaining to the applicability of RCW 58.17.200 (§ 20, chapter 271, Laws of 1969, Ex. Sess.) to the sale or transfer of certain lots, tracts, or parcels of land.
ANALYSIS
The statute to which your question was directed reads as follows:
"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."
As we understand it, your concern is with the applicability and enforceability of this statute to a situation such as the following:
A, being the owner of a certain tract of land, divides it into four lots. He then sells three to B, C, and D and retains the fourth himself. Thereafter, after the lapse of a period of time, either B, C, or D, divides his lot (one of four contained in the original tract) into two lots, selling one to E and retaining the other himself.
As indicated above, RCW 58.17.200 codifies the [[Orig. Op. Page 2]] provisions of § 20, chapter 271, Laws of 1969, Ex. Sess. By this 1969 act, the legislature established a comprehensive, new law governing plats and subdivisions in this state. In the process, it repealed the provisions of chapter 58.16 RCW, which codified our previous platting and subdivision law. However, notwithstanding this drafting approach the new law contains many provisions which are either identical or very similar to provisions contained in the previous act.
Among the similarities between the old law and the new one is the general applicability of both to only those subdivisions of land containing five or more lots or tracts. Compare RCW 58.16.010 with the definitions of "subdivision," and "plat" contained in RCW 58.17.020 (1) and (2).
RCW 58.16.010 codifying § 1, chapter 186, Laws of 1937, provided that:
"The platting and subdividing of land into lots, or tracts comprising five or more of such lots or tracts, or containing a dedication of any part thereof as a public street or highway is hereby required to proceed under, and in compliance with, the provisions of this chapter."
Similarly, subsection (1) of RCW 58.17.020, codifying § 2, chapter 271, Laws of 1969, Ex. Sess., defines the term "subdivision" as meaning:
". . . 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."
And, likewise, subsection (2) of this 1969 statute defines "plat" as meaning:
". . . a map or representation of a subdivision, showing thereon the division of a tract or parcel of land into lots, blocks, streets and alleys or other divisions and dedications."
In 1953, during the period when chapter 58.16 RCW was in effect as the general law governing plats and subdivisions in this state, this office was asked a question very similar to the one which you have presently submitted to us for our consideration. Specifically, we were asked whether [[Orig. Op. Page 3]] chapter 58.16 RCW ‑ with emphasis upon RCW 58.16.010 ‑ was applicable to piecemeal sales of separate portions of a given tract over a prolonged period of time. We responded to this question as follows:
"We think that the statute was intended to apply only to a situation where the real estate is divided up with the intent to create an actual real estate subdivision encompassing more than five [sic] specific lots. In our opinion it does not apply to your situation."
Because of the similarities between the previous legislation which was thus construed and that which your present opinion request has placed before us, we are inclined here to conclude, likewise, that a substantial degree of doubt must be said to exist as to the availability of an action, under RCW 58.17.200, supra, to prevent either A's sale to B, C, D, or any of the subsequent sales to E within the confines of the hypothetical factual situation which was set forth at the outset of this letter.
However, unlike the prior act which was replaced by chapter 58.17 RCW, it is of considerable importance to note and understand that in this new act the legislature has given the various counties, cities and towns, by express grant of authority, a set of "tools" with which to deal with factual patterns such as those described in your letter, or as exemplified by our hypothetical case. In addition to the definitions of "subdivision" and "plat" which we have quoted above, § 2 of the 1969 act (RCW 58.17.020) also defines two other significant terms; namely, "short subdivision" and "short plat." Under subsection (6), a "short subdivision" is defined as meaning
". . . the division of land into four or less lots, tracts, parcels, sites or subdivisions for the purpose of sale or lease."
And under subsection (7) a "short plat" is defined as,
". . . the map or representation of a short subdivision."
[[Orig. Op. Page 4]]
The significance of these two terms will immediately be seen from a reading of the provisions of §§ 3 and 6 of the 1969 act ‑ now codified as RCW 58.17.030 and RCW 58.17.060. The first of these two sections reads as follows:
"Every subdivision shall comply with the provisions of this chapter. Every short subdivision as defined in this chapter shall comply with the provisions of any local regulation as may be adopted pursuant to RCW 58.17.060." (Emphasis supplied.)
The second of the above noted sections (RCW 58.17.060) follows up on the underscored portion of the above quoted provisions of § 3 by providing 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."
The critical point we would make to you with respect to these two sections is this: If your county is truly concerned with the regulation of those types of real estate transactions which you have referred to, and which are exemplified by our hypothetical case described above, it is vested with the authority to regulate those transactions through the adoption of local regulations governing "short subdivisions." By adopting such regulations, the county will effectively bring the subject of "short subdivisions" within the purview of the 1969 act, and will specifically preclude any abuses of the "short subdivision" approach to platting and subdividing by [[Orig. Op. Page 5]] invoking the critical first proviso to RCW 58.17.060, supra, which states that:
". . . 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: . . ."
It is hoped that the foregoing opinion and suggestion will be of some assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Assistant Attorney General