AGO 1992 No. 25 - Oct 20 1992
CITIES AND TOWNS--ZONING--PREEMPTION--Preemption of Zoning Ordinances Related to Residential Care Facilities Licensed by the State
1. RCW 70.128.175(2) provides that adult family homes shall be permitted uses in all areas zoned for residential or commercial purposes. This statute preempts local zoning ordinances that prohibit the location of an adult family home within a certain distance of other similar facilities.
2. The State licenses residential care facilities, other than adult family homes. The fact that the State licenses these facilities does not in and of itself preempt local zoning ordinances that prohibit the location of such facilities within a certain distance of other similar facilities.
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October 20, 1992
Honorable Linda Smith
State Senator, District 18
201 Institutions Building
Post Office Box 40418
Olympia, Washington 98504-0418
Cite as: AGO 1992 No. 25
Dear Senator Smith:
By letter previously acknowledged, you asked the following paraphrased question:
Do state laws authorizing (state) licensing of residential care facilities preempt a city from adopting a zoning ordinance that prohibits such facilities from being located within a certain distance of a similar facility?
We answer your question in the affirmative for adult family homes, and in the negative for other types of facilities, as set forth in our analysis.
You have asked about state preemption of the authority of a city to enact zoning ordinances with regard to residential care facilities licensed by the State. Your letter specifically asks about domestic violence shelters (chapter 70.123 RCW), home health agencies (chapter 70.127 RCW), adult family homes (chapter 70.128 RCW), private establishments for care of the mentally incompetent, and alcoholic (chapter 71.12 RCW), and day training centers and group training homes (chapter 71A.22 RCW). Other residential care facilities not mentioned in your letter include boarding homes (chapter 18.20 RCW), nursing homes (chapter 18.51 RCW), and homes for dependent children, expectant mothers, and developmentally-disabled persons (chapter 74.15 RCW).
More specifically, you asked whether a city may enact a zoning ordinance that prohibits the location of these facilities within a distance (e.g., 1,000 feet) of other similar facilities. Stated another way, for example: Can a city prohibit the location of an adult family home within 1,000 feet of another adult family home?
Your letter suggests that the stated purpose of such an ordinance is to protect residential neighborhoods from a concentration of residential care facilities, and to assure that these facilities are appropriately dispersed throughout the city.
In answering your question, we start with article 11, section 11 of the Washington Constitution, which grants a city the power to "make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." This means that when a state statute and a municipal ordinance on the same subject matter cannot be harmonized, the municipal ordinance must yield. State v. Seattle, 94 Wn.2d 162, 166, 615 P.2d 461 (1980); Spokane v. J-R Distrib. Inc., 90 Wn.2d 722, 730, 585 P.2d 784 (1978).
An ordinance conflicts with a state statute if the statute clearly and explicitly preempts the power of local government to legislate in a particular area. State ex rel. Schillberg v. Everett Dist. Justice Court, 92 Wn.2d 106, 108, 594 P.2d 448 (1979). An ordinance also is in conflict if it attempts to authorize what the state statute forbids, or forbids what the statute authorizes. Bellingham v. Schampera, 57 Wn.2d 106, 109, 356 P.2d 292 (1960). Whether there is a conflict depends on the legislative intent derived from an analysis of the statute involved. Lenci v. Seattle, 63 Wn.2d 664, 669, 388 P.2d 926 (1964).
With these principles in mind, we now consider whether a zoning ordinance of the type described in your letter is preempted by state law.
1. Adult Family Homes: Adult family homes are family abodes of persons who are providing personal care, room, and board to more than one but not more than four unrelated adults. RCW 70.128.010. The state Department of Social and Health Services licenses adult family homes. RCW 70.128.040. RCW 70.128.175(2) states as follows:
An adult family home shall be considered a residential use of property for zoning purposes. Adult family homes shall be a permitted use in all areas zoned for residential or commercial purposes, including areas zoned for single family dwellings.
(Emphasis added.) The issue is whether RCW 70.128.175(2) prohibits a city from requiring that adult family homes be a certain distance (e.g., 1,000 feet) from other residential care facilities.
In State v. Seattle, supra, an ordinance empowered the city to approve any plan to alter or destroy landmark buildings. A state statute, RCW 28B.20.392(2)(b)(i), (ii), empowered the University Board of Regents to "raze, reconstruct, alter, remodel or add to existing buildings" located within the university tract. In ruling that the ordinance did not apply to buildings in the university tract, the court held:
The city's landmarks ordinance as applied cannot coexist with RCW 28B.20.392(2)(b)(ii). The effect of applying the landmarks ordinance to the Tract would be to forbid alterations of the nominated properties without Board approval and subject designated structures to controls imposed by the city council, while RCW 28B.20.392(2)(b)(ii) expressly permits the Board of Regents to alter and even demolish Tract buildings. The legislature has clearly shown its intent that the decision-making power as to preservation or destruction of Tract buildings rests with the Board of Regents.
94 Wn.2d at 166 (citations omitted).
In Snohomish County v. State, 97 Wn.2d 646, 648 P.2d 430 (1982), the Legislature selected a particular site and appropriated money to build a prison. In ruling that a county zoning ordinance was unenforceable to prohibit building the prison, the court stated:
The conclusion to be drawn from these provisions is clear. The Legislature in balancing the interests involved determined that the decision as to the new prison's location on the grounds of the state reformatory was to be made by the State and the agency responsible for the facility. The decision was not one to be controlled by local authorities. If it were so controlled, it is conceivable state prisons would not be permitted in any county. Accordingly, the Legislature unequivocally expressed its intent to preempt the County's zoning regulation insofar as it conflicted with the State's decision regarding the prison's location. We note that there are instances where the Legislature specifically allows local authorities to exercise control over State projects. For example, RCW 19.27 provides that local authorities are to enforce minimum building code requests and any amendments adopted by the local government. The provisions specifically apply to state buildings. In contrast, the zoning regulation in the instant case cannot be harmonized with the legislative enactments. Thus, Const. art. 11, § 11 requires that the local regulation yield to the general laws of the state.
Id.at 650 (emphasis added).
RCW 70.128.175(2) states that adult family homes are permitted uses in "all areas" zoned for residential or commercial uses. An adult family home is not a permitted use in "all areas" if it cannot be operated within a distance (e.g., 1,000 feet) of another residential facility. Thus, such an ordinance conflicts with RCW 70.128.175(2) in that it attempts to prohibit what the statute allows. State v. Seattle, supra. Moreover, in our opinion, by enacting RCW 70.128.175(2) the Legislature intended to preempt the city's zoning power to treat adult family homes more restrictively than other residential or commercial uses. Snohomish County v. State, supra. For these reasons, we believe such an ordinance, as applied to adult family homes licensed under chapter 70.128 RCW, is preempted by state law and is unenforceable.
2. Other Residential Care Facilities: In addition to adult family homes, you have also asked about other state-licensed residential care facilities. These include boarding homes (chapter 18.20 RCW), nursing homes (chapter 18.51 RCW), domestic violence shelters (chapter 70.123 RCW), home health agencies (chapter 70.127 RCW), private establishments for care of the mentally ill, mentally incompetent, or alcoholic (chapter 71.12 RCW), day care training centers and group training homes (chapter 71A.22 RCW), and homes for dependent children, expectant mothers, and developmentally-disabled persons (chapter 74.15 RCW). These statutes grant a state agency (either the Department of Social and Health Services or the Department of Health) the power to license the particular residential care facility so long as minimum licensing standards are met.
The respective licensing statutes governing operation of these residential care facilities do not include a provision similar to RCW 70.128.175(2) which limits the zoning power of local government. Nor do these statutes grant the licensing state agencies any authority to decide the location of the facilities. Neither legislative intent to preempt local regulation nor a conflict with state statute can be inferred from the mere fact that the state regulates the facilities. For example, in Lenci, supra, the court found no conflict between an ordinance requiring an eight-foot view-obscuring wall for a wrecking yard and RCW 46.80.130 which required only a "wall, fence or wire enclosure" for a wrecking yard. Quoting from State ex rel. Isham v. Spokane, 2 Wn.2d 392, 398, 98 P.2d 306 (1940), the court stated:
It is well-settled that a city may enact local legislation upon subjects already covered by state legislation so long as its enactments do not conflict with the state legislation; and 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, 63 Wn.2d at 670 (emphasis added) (citations omitted).
In State ex rel. Schillberg v. Everett Dist. Justice Court, supra, 92 Wn.2d at 108, the court held that there was no conflict between chapter 88.12 RCW which governs the safe operation of motor boats, and a county ordinance which prohibits the use of internal combustion motors on a certain lake. The court said: "There being no express statement nor words from which it could be fairly inferred that motor boats are permitted on all waters of the state, no conflict exists and the ordinance is valid."
Based on these cases, we find no conflict between an ordinance which prohibits one residential care facility from being located within a distance (e.g., 1,000 feet) of another residential care facility, and the state statutes which allow these facilities to operate if licensed by the state. Hence, operation of such an ordinance is not preempted by state law as applied to residential care facilities other than adult family homes.
We trust this opinion will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
RICHARD A. McCARTAN
Assistant Attorney General
 Conceivably, certain federal laws might also preempt local zoning decisions. See, e.g., Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.; Fair Housing Act, 42 U.S.C. § 3604, et seq.; Older Americans Act, 42 U.S.C. § 3001, et seq. However, this is not necessarily the case. For example, in Familystyle v. St. Paul, 923 F.2d 91 (8th Cir. 1991), the court ruled that a state statute which required homes for the mentally impaired to be located at least one quarter mile apart, did not violate the Fair Housing Act. The application of federal law falls outside the scope of your question and we do not consider it in this opinion.
 Similarly, on preemption grounds, courts in other jurisdictions have struck down zoning ordinances which attempt to ban residential care facilities from residential zones when a state statute, like RCW 70.128.175(2), mandates such facilities be considered "residential" for zoning purposes. Residential Management Sys. Inc. v. Jefferson County Plan Comm'n, 542 N.E. 2d 227 (Ind. App. 1989); Mahrt v. Kalispell, 690 P.2d 418 (Mont. 1984); Nichols v. Tullahoma Open Door, Inc., 640 S.W.2d 13 (Tenn. App. 1982); Costley v. Caromin House, Inc., 313 N.W.2d 21 (Minn. 1981); Mental Health Ass'n v. Elizabeth, 180 N.J. Super. 304, 434 A.2d 688 (1981); Mongony v. Bevilacqua, 432 A.2d 661 (R.I. 1981); Los Angeles v. Department of Health, 63 Cal. App. 3d 473, 133 Cal. Rptr. 771 (1976).
 Our analysis assumes that this ordinance would not have the effect of completely prohibiting these residential care facilities. If this were the practical effect of the ordinance, we might reach a different conclusion. In Second Amendment Found. v. Renton, 35 Wn. App. 583, 668 P.2d 596 (1983), the Court of Appeals, Division I, ruled that an ordinance which made it unlawful to carry firearms in any premise where alcoholic beverages are dispensed by the drink was not preempted by the Uniform Firearms Act, chapter 9.41 RCW. However, in dicta, the court noted that an absolute and unqualified local prohibition against possession of firearms might conflict with state law. Id. at 589. The applicability of the subject ordinance to a particular situation is beyond the scope of this opinion.
 Besides complying with article 11, section 11 of the Washington Constitution, a zoning ordinance also must promote the public health, safety, and welfare, and bear a reasonable and substantial relation to accomplishing the purpose pursued. Duckworth v. Bonney Lake, 91 Wn.2d 19, 26-27, 586 P.2d 860 (1978). Your question does not require us to address this issue with respect to the subject ordinance. We note, however, that courts have reached different conclusions on this issue. See Chestnut Hill Co. v. Snohomish, 76 Wn.2d 741, 458 P.2d 891 (1969) (upholding as reasonable an ordinance zoning nursing homes out of residential neighborhoods to maintain the residential character of the neighborhood); Verland C.L.A., Inc. v. Zoning Hearing Bd., 556 A.2d 4 (Pa. 1989) (upholding as reasonable minimum distance requirements between homes for mentally-retarded persons). But cf.J.W. v. Tacoma, 720 F.2d 1126 (9th Cir. 1983) (striking down as unreasonable the denial of a special use permit to operate a home for former mental patients in a residential zone); Northwest Residence, Inc. v. Brooklyn Center, 352 N.W.2d 764 (Minn. App. 1984) (striking down as unreasonable denial of special permit to operate home for mentally ill).