AGLO 1974 No. 88 - Oct 29 1974
CITIES AND TOWNS ‑- COUNTIES ‑- PLATS AND SUBDIVISIONS
The legislative body of a city, town or county, in adopting regulations and procedures for the approval of short subdivisions under RCW 58.17.060, as amended by § 3, chapter 134, Laws of 1974, 1st Ex. Sess., may not specify, at its option, the number of lots, tracts or parcels into which land must be divided before such regulations and procedures will be applied.
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October 29, 1974
Honorable Herbert H. Davis
P.O. Box 510
Prosser, Washington 99350 Cite as: AGLO 1974 No. 88
By way of letter previously acknowledged you have requested the opinion of this office on a question involving the Washington subdivision law (chapter 58.17 RCW) which we paraphrase as follows:
May the legislative body of a city, town or county, in adopting regulations and procedures for the approval of short subdivisions under RCW 58.17.060, as amended by § 3, chapter 134, Laws of 1974, 1st Ex. Sess., specify, at its option, the number of lots, tracts or parcels into which land must be divided before such regulations and procedures will be applied?
For the reasons set forth in our analysis below we answer this question in the negative.
As your letter points out, § 3 of chapter 134, Laws of 1974, 1st Ex. Sess., amended RCW 58.17.060 to require all counties, cities and towns to adopt regulations and procedures for the review and approval of "short plats" and "short subdivisions." As thus amended the statute now provides, in pertinent part, that:
"The legislative body of a city, town, or county shall adopt regulations and procedures, and appoint administrative personnel for the summary approval of short plats and short subdivisions, or revision thereof. . . ."
A "short subdivision" is defined elsewhere, in RCW 58.17.020(6), as
". . . the division of land into four or less lots, tracts, parcels, sites or subdivisions for the purpose of sale or lease." (Emphasis supplied.)
[[Orig. Op. Page 2]]
Prior to this 1974 amendment, RCW 58.17.060 left the enactment of such regulations and procedures for the approval of short subdivisions to the option of the local legislative bodies therein named. It provided, however, that if such regulations were enacted their content would be governed, in part, by the statute. In this regard the statute read, and still reads, as follows:
". . . 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."
Your question, as we understand it, is whether the legislature, notwithstanding the general mandatory language of RCW 58.17.060, as amended, has left it to the discretion of a county, city or town to determine whether its regulations and procedures regarding short subdivisions are to be applied to all subdivisions of four or less units, or only to those of either three or more, or four units. We conclude that the legislature did not intend to give this limited option to those local governments but, instead, intended that their regulations, when enacted, would be applicable to any division of land containing two or more but less than five units ‑ subject, of course, to the various exemptions contained in other parts of the law.1/
In so concluding we first note that RCW 58.17.030, which was also amended by chapter 134, Laws of 1974, 1st Ex. Sess.,2/ now provides that:
". . . Every short subdivision as defined in this chapter shall comply with the provisisions of any local regulation adopted pursuant to RCW 58.17.060." (Emphasis supplied.)
The obvious inference to be drawn from this language is that all short subdivisions ‑ i.e., all ". . . divisions of land [[Orig. Op. Page 3]] into four or less lots, . . . for the purpose of sale or lease" ‑ will be governed by such local regulations. Moreover, the term "four or less" must be taken to mean any number less than five ‑ except, of course, for one, which would not constitute a division at all. Cf., Loechner v. Campoli, 49 N.J. 504, 231 A.2d 553 (1967). Accord, the principle that words used in a statute should be given their common meaning unless the context requires a different interpretation. Amburn v. Daly, 81 Wn.2d 241, 501 P.2d 178 (1972). We can find nothing in this statute which requires or even suggests any different interpretation of this phrase.
Therefore it necessarily follows that to read RCW 58.17.060, supra, as amended, as permitting a county or city to limit its now mandatory short subdivision ordinance to those subdivisions containing more than two units (i.e., three or four) would be to read something into that statute which simply is not there; namely, an authorization to exempt those containing only two units, or perhaps even those containing either two or three units. In other words, it would be (for example) to read this statute as if it contained language similar to that of W.S.A., § 236.45(2), a Wisconsin statute permitting local governments to regulate subdivisions of less than five units with exemption for statutorily designated situations and for ". . . such other divisions exempted by . . . ordinance . . ."3/
Also supporting the conclusion which we here reach is the first proviso to RCW 58.17.060. Repeated for ease of reference, this proviso requires that the regulations enacted by a county, city or town with respect to short subdivisions:
". . . 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: . . ."
By this provision the legislature clearly required any resubdivision of land originally constituting a short subdivision [[Orig. Op. Page 4]] to comply with those conditions for final plat approval, otherwise applicable to subdivisions of five or more lots. The application of this proviso to resubdivisions within a five year period of the first partition suggest a legislative concern with the activities of those who would seek to circumvent the requirements of final plat approval through a process of subdivision into a lesser number of parcels followed by successive subdivisions. Thus, a construction of RCW 58.17.060 to authorize local governments to exempt initial subdivisions of two or three lots from the operation of their short subdivision ordinances would permit the subversion of the regulatory scheme of the statute by those who fully intended to partition the original parcel into a subdivision of five or more units.
For the foregoing reasons, then, we believe that your question must be answered in the negative. The legislative body of a city, town or county, in adopting regulations and procedures for the approval of short subdivisions under RCW 58.17.060, as amended by § 3, chapter 134, Laws of 1974, 1st Ex. Sess., may not specify, at its option, the number of lots, tracts or parcels into which land must be divided before such regulations and procedures will be applied.
We trust the foregoing will be of assistance to you.
Very truly yours,
LELAND T. JOHNSON
Assistant Attorney General
*** FOOTNOTES ***
1/See, RCW 58.17.040.
2/See, § 1.
3/By the same token, it would likewise be to read the definition of "short subdivision" in RCW 58.17.020(6), supra, as if it read as does § 15.1-465 of the Code of Virginia Annotated, which provides that:
"Unless otherwise defined [by ordinance] the term subdivision means the division of a parcel of land into three or more lots or parcels of less than five acres each . . . or if a new street is involved in such division, any division of a parcel of land."