AGLO 1980 No. 31 - Nov 3 1980
OFFICES AND OFFICERS ‑- COUNTY ‑- AUDITOR ‑- PLATS AND SUBDIVISIONS ‑- LAND SURVEYS ‑- PROCESSING AND RECORDING OF LAND SURVEYS
(1) A county auditor is legally authorized to reject records of survey which do not meet the requirements set forth in chapter 332-130 WAC, chapter 58.09 RCW and chapter 58.17 RCW.
(2) A county auditor is required by RCW 58.17.190‑-prior to approval by the appropriate local legislative body‑-to refuse to accept for recordation any maps or representations which in fact constitute a "plat" of a "subdivision" required to be filed under chapter 58.17 RCW, and which otherwise contain a survey of such a subdivision.
(3) The duties imposed by RCW 58.17.160 on a county engineer involve the performance of the governmental function of approval of data to enable the appropriate legislative body to pass on a proffered plat or replat‑-and not the conduct of such survey activities as are involved in the platting; accordingly, in carrying out such review functions and granting approval, the county engineer is not engaging in the practice of land surveying.
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November 3, 1980
Honorable James E. Carty
P.O. Box 5000
Vancouver, Washington 98660 Cite as: AGLO 1980 No. 31
By letter previously acknowledged, you requested our opinion on several questions relating to surveys and plats. We paraphrase those questions as follows:
(1) Does a county auditor have the authority to reject records of survey which do not meet the requirements set forth in chapter 332-130 WAC, chapter 58.09 RCW and chapter 58.17 RCW?
[[Orig. Op. Page 2]]
(2) Is a county auditor required by RCW 58.17.190 to reject records of survey which divide property where the parcels created are of such a size as to necessitate plat approval and recording prior to offering such parcels for sale or lease; and if not, may he be authorized or required to do so by local ordinance?
(3) When a county engineer approves a plat pursuant to RCW 58.17.150 and 58.17.160, what is the nature of his approval?
(4) Is a county engineer required to be a dual registrant under the provisions of RCW 18.43.070?
We answer question (1) in the affirmative and your remaining questions as set forth in our analysis.
Chapter 58.09 RCW, which is referred to in your first question, is known as the "Survey Recording Act."1/ RCW 58.09.010 sets forth the purpose of this law as follows:
"The purpose of this chapter is to provide a method for preserving evidence of land surveys by establishing standards and procedures for monumenting and for recording a public record of the surveys. Its provision shall be deemed supplementary to existing laws relating to surveys, subdivisions, platting and boundaries."
A "survey" is defined in RCW 58.09.020(3) to mean:
". . . the locating and monumenting in accordance with sound principles of land surveying by or under the supervision of a licensed land surveyor, of points or lines which define the exterior boundary or boundaries common to two or more ownerships or which reestablish or restore general land office corners."
[[Orig. Op. Page 3]]
RCW 58.09.030 then provides that every map, plat, report, description or other document issued by a licensed land surveyor must comply with the provisions of the act when those documents are filed as public records. Not all surveys, however, are required to be recorded. Thus, RCW 58.09.090 provides that a record of survey is not required when the survey has been made by a public officer under certain described circumstances. Also, under the same statute, a record of survey is not required if it is of a preliminary nature, is being prepared for recording or has been recorded under a local subdivision or platting law ordinance. In those cases, however, certain corner information is required by the statute to be filed within 90 days of an establishment, reestablishment or restoration of a corner on a boundary of two or more ownerships or general land office corners. See, RCW 58.09.040(1).
In the event a survey is recorded, the law then sets out a number of survey requirements applicable to such recording. Thus, RCW 58.09.040 begins by providing that:
"After making a surveyin conformity with sound principles of land surveying, a land surveyor may file a record of survey with the county auditor . . ." (Emphasis supplied)
RCW 58.09.040(1),supra, then requires certain disclosures relating to the filing of mandatory corner information. Specifically, RCW 58.09.040(1)(a) through (d) require disclosure of (a) the establishment of corners materially varying from the description of record, (b) the establishment of one or more property corners not previously existing, (c) any evidence that reasonable analysis might result in alternate positions of lines or points as a result of an ambiguity in the description and (d) the reestablishment of lost government land office corners. And RCW 58.09.060(1) and (2) contain further requirements and standards concerning records of survey which relate to corner information and the ascertainment and establishment of such corners.
In addition, RCW 58.09.070 prohibits a survey map from being recorded unless it also shows (or is accompanied by a map showing) the control scheme through which were determined the coordinates that were used from points of known coordinates when the coordinate system is shown for points on a record of survey map. And RCW 58.09.050 sets forth standards relative to form and procedures.
[[Orig. Op. Page 4]]
We turn, next, to chapter 58.17 RCW which is also referred to in your first question. That chapter relates to plats and subdivisions; and RCW 58.17.160(2) contains a specific requirement that every plat or replat filed for record with a county auditor must be accompanied by a survey of the section or sections in which the plat or replat is located. This provision also requires the submission of certain information relative to the original or reestablished corners along with descriptions of such corners. In addition, sketches must be included showing all distances, angles and calculations that are needed to determine the corners and distances of the plat. The same provision also specifies an allowable error of closure of survey.
Also to be noted is RCW 58.17.160(1), quoted below at pp. 9-10, which requires that the applicable city or county engineer or a licensed engineer, acting on behalf of the public, review and approve the survey data.2/
Finally, we turn to chapter 332-130 WAC, as promulgated by the Department of Natural Resources pursuant to RCW 58.24.040(1) which authorizes that agency to set up standards of accuracy and methods of procedure for surveys. These regulations set forth land subdivisions survey standards,3/ land description requirements,4/ survey map requirements,5/ field traverse standards6/ and geodetic control survey standards.7/ The regulations apply to both land boundary surveys and geodetic control surveys, the former being surveys made for the specific purpose of establishing or reestablishing the boundary of any lot, tract or parcel of real property in the state.8/
[[Orig. Op. Page 5]]
We believe that all of these statutes and regulations set forth standards for surveys which are reviewable by appropriate public officers. Clearly, RCW 58.17.160 permits a county auditor to refuse for filing those plats or replats which have not been approved by the appropriate county or city engineer as to survey data. And inherent in any review and approval by a city, town or county engineer is a determination of whether the survey related to the particular plat or replat complies with the standards in chapter 332-130 WAC, chapter 58.09 RCW and RCW 126.96.36.199/ We are also of the opinion that a county auditor may refuse to accept for filing those surveys and corner information which are determined not to be in compliance with the provisions of chapter 58.09 RCW or chapter 332-130 WAC. Both RCW 58.09.040 and 58.09.060 condition a record of survey by imposing standards and requirements which necessitate that the auditor examine the accompanying records and data to determine whether the proferred information meets those standards‑-and contemplate that such requirements must be met.
We believe the reasoning employed in Fischnaller v. Thurston County, 21 Wn.App. 280, 584 P.2d 483 (1978) is applicable to this situation. There the Court of Appeals upheld a refusal by a county auditor to accept a filing for a declaration of candidacy for office where a defect of residency readily appeared on the face of declaration. In so ruling, the Court cited and relied on the earlier case of Eggert v. Ford, 21 Wn.2d 152, 150 P.2d 719 (1944), in which a county auditor was held to have a right to refuse to accept an instrument affecting title which was not acknowledged as required by law.10/
[[Orig. Op. Page 6]]
These cases illustrate to us that an auditor's authority under chapter 58.09 RCW permits him (or her) to examine a record of survey and determine from at least the face of such documents as are involved whether the survey criteria and standards contained both in that act and under chapter 332-130 WAC have been met. In the event the record of survey does not meet those requirements, we believe the auditor can then refuse the proferred survey for recording.11/
This question, once again, asks:
Is a county auditor required by RCW 58.17.190 to reject records of survey which divide property where the parcels created are of such a size as to necessitate plat approval and recording prior to offering such parcels for sale or lease; and if not, may he be authorized or required to do so by local ordinance?
RCW 58.17.190 provides that:
"The county auditor shall refuse to accept any plat for filing until approval of the plat has been given by the appropriate legislative body. Should a plat or dedication be filed without such approval, the prosecuting attorney of the county in which the plat is filed shall apply for a writ of mandate in the name of and on behalf of the legislative body required to approve same, directing the auditor and assessor to remove from their files or records the unapproved plat, or dedication of record."
[[Orig. Op. Page 7]]
We believe that a county auditor is required by this statute‑-prior to approval by the appropriate local legislative body‑-to refuse to accept for recordation any maps or representations which in fact constitute a "plat" of a "subdivision" required to be filed under chapter 58.17 RCW, and which otherwise contain a survey of such a subdivision.12/
The auditor must determine whether the map or representation containing a survey also constitutes a "plat" as defined in RCW 58.17.020(2); i.e.,
". . . 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." (Emphasis supplied)
A "subdivision," in turn, is defined in RCW 58.17.020(1) as:
". . . the division of land into five or more lots, tracts, parcels, sites or divisionsfor the purpose of sale or lease and shall include all resubdivision of land." (Emphasis supplied)
It is recognized that the survey on which the plat is used may be separate from the plat. Also, there may be instances where the subdivision of land into parcels has not been for the purpose of sale or lease. In those instances, the auditor may not refuse the survey for recordation under chapter 58.09 RCW. It is only those instances where the survey, sought to be recorded, also is determined to be a "plat" that a filing may be refused.
[[Orig. Op. Page 8]]
The Survey Recording Act, under RCW 58.09.010, supra, is supplementary to existing laws relating to surveys, subdivisions, platting and boundaries. Hence, the Survey Recording Act was not intended to obviate the necessity for complying with the provisions of chapter 58.17 RCW in filing plats. Where plats may not be filed with a county auditor under chapter 58.17 RCW, the record of survey which otherwise constitutes a plat cannot be filed if it has not met the requirements of that chapter.13/
The second part of this question concerns the authority of a county or other local legislative body to enact an ordinance prohibiting the recording of a survey which divides property when the auditor otherwise determines that it would not have to be filed under chapter 58.17 RCW. We do not believe that such a local legislative body would have such authority.
Article XI, § 11 of our state constitution provides that:
"Any county, city, town or township may make and enforce within its limits all such local policy, sanitary and other regulations as are not in conflict with general laws." (Emphasis supplied)
The test concerning the validity of a local ordinance under this provision is whether the ordinance conflicts with general laws or whether the state has preempted local regulation. State x rel. Schillberg v. Everett District Justice Court, 92 Wn.2d 106, 594 P.2d 448 (1979);Clallam County Deputy Sheriff's Guild, et al. v. The Board of Clallam County Commissioners, 92 Wn.2d 844, 601 P.2d 943 (1979).
Here, chapter 58.09 RCW constitutes a general law with which a local ordinance may not conflict. Its provisions are intended to apply to all surveys as defined therein. It is a recording act which has state‑wide applicability. It contains specific requirements and standards that, if altered by local regulation, would defeat the purpose of the act. We therefore do not believe a city, town or county has the power to authorize a county auditor to refuse for recordation a survey otherwise legally recordable under that state law on the basis of a [[Orig. Op. Page 9]] local ordinance. The only exception would be where the survey was subject to the requirements of a local short subdivision ordinance enacted under chapter 58.17 RCW.14/
Furthermore, we believe that chapter 58.09 RCW contains a legislative program which is intended to be comprehensive in its application, evidencing an intent to occupy the field as to the recordation of surveys.
Questions (3) and (4):
These questions, also repeated for ease of reference, ask:
When a county engineer approves a plat pursuant to RCW 58.17.150 and 58.17.160 what is the nature of his approval?
Is a county engineer required to be a dual registrant under the provisions of RCW 18.43.070?
RCW 58.17.160 provides that:
"Each and every plat, or replat, of any property filed for record shall:
"(1) Contain a statement of approval from the city, town or county licensed road engineer or by a licensed engineer acting on behalf of the city, town or county as to the survey data, the layout of streets, alleys and other rights of way, design of bridges, sewage and water systems, and other structures;
"(2) Be accompanied by a complete survey of the section or sections in which the plat or replat is located, or as much thereof as may be necessary to properly orient the plat within such section or sections. The plat and section survey shall be submitted with complete field and computation notes showing the original or reestablished corners with descriptions of the same and the actual traverse showing error of closure and [[Orig. Op. Page 10]] method of balancing. A sketch showing all distances, angles and calculations required to determine corners and distances of the plat shall accompany this data. The allowable error of closure shall not exceed one foot in five thousand feet.
". . ."
Inherent in the answers to your third and fourth questions is a determination of whether a county engineer is carrying out the "practice of land surveying" as defined in RCW 18.43.020 which provides, in part:
". . .
"Practice of land surveying: The term 'practice of land surveying' within the meaning and intent of this chapter, shall mean assuming responsible charge of the surveying of land for the establishment of corners, lines, boundaries, and monuments, the lying out and subdivision of land, the defining and locating of corners, lines, boundaries and monuments of land after they have been established, the survey of land areas for the purpose of determining the topography thereof, the making of topographical delineations and the preparing of maps and accurate records thereof, when the proper performance of such services requires technical knowledge and skill.
". . ."
We do not believe the function of a county engineer in approving survey data and the layout of streets, alleys and rights of way in proposed plats constitutes the practice of land surveying. The duties imposed by RCW 58.17.160,supra, on the county engineer involve the performance of a governmental function of approval of data to enable the appropriate legislative body to pass on a proffered plat or replat‑-and not the conduct of such survey activities as are involved in the platting.
[[Orig. Op. Page 11]]
The survey function is provided for in RCW 58.17.250 which requires the survey of a plat to be made by or under the supervision of a registered land surveyor who must certify the survey. This is a function to be performed by the person seeking to plat the land and not by the county engineer who is merely to review and approve the survey data as submitted by the land surveyor.
It is also significant that the legislature did not require approval of the survey data or right-of-way information by a registered land surveyor. Nor is there any evidence of any legislative intent that a county engineer is required to be a dual registrant under the provisions of RCW 18.43.070.
The legislature is assumed to have knowledge of other laws including the provisions of RCW 36.80.020 which require the county engineer to be only a licensed professional civil engineer. Department of Fisheries v. PUD, 91 Wn.2d 378, 588 P.2d 1146 (1979). RCW 58.17.160 is a delegation of a specific governmental function to the county engineer. That function is unlike the function of actually surveying lands within the county; a function which, as contemplated by the provisions of RCW 36.32.370, is to be performed by a surveyor. Conversely, as we have pointed out, the approval function does not constitute the practice of land surveying. The engineer is not in charge of the actual surveying of the land nor is he involved in the preparation of maps or the location of monuments. His only function is to review the survey data to determine whether it is acceptable for the purpose of approving a proposed plat or replat.15/
In short, we do not believe that, in carrying out such review functions and granting approval, the county engineer is engaging in the practice of land surveying. Nor is he required to be a dual registrant under RCW 18.43.070. As above noted, we do believe, however, that the county engineer must, in determining whether to give approval, review the data to determine if it complies with all applicable standards and laws. This includes the applicable requirements under chapter 58.17 RCW as well as chapter 332-130 WAC and chapter [[Orig. Op. Page 12]] 58.09 RCW. We further believe that due to the nature of the specific survey data required to be submitted under RCW 58.17.160, the engineer must review such data as to its mathematical accuracy.
We trust that the foregoing will be of assistance to you.
Very truly yours,
THEODORE O. TORVE
Senior Assistant Attorney General
*** FOOTNOTES ***
1/Chapter 50, Laws of 1973.
2/RCW 58.17.160 relates to plats and replats. These terms do not include short plats. However, RCW 58.17.060 would authorize the appropriate legislative body to adopt filing requirements for acceptable surveys of land included in short plats. See, AGLO 1979 No. 29.
4/WAC 332-130-040 and 332-130-050.
8/See, WAC 332-130-020(1).
9/As above noted, maps being prepared or recorded under local ordinances relating to subdivisions or platting laws are exempt from the Survey Recording Act. RCW 58.09.090(1)(c),supra. But RCW 58.09.090(2) requires corner information provided for in RCW 58.09.040(2) to be filed on all surveys which are otherwise exempt for filing.
10/The Court in the Fischnaller case also distinguished the case of State ex rel. McCaffrey v. Superior Court, 20 Wn.2d 704, 149 P.2d 156 (1944), where the Supreme Court held that the auditor could not refuse a declaration of candidacy on the basis that the candidate failed to satisfy the residency requirement. The Court inFischnaller indicated that if the defect appears on the fact of the record, the auditor can refuse such a request for filing. However, if extrinsic evidence is needed to determine the existence of a defect, the auditor may not make such a decision.
11/Similarly, we believe that a city, town or county engineer or a licensed engineer acting on behalf of such municipality may refuse to issue an approval of survey data when examining a plat or replat of property proposed to be filed for record with the county auditor when such data fails to meet the standards contained both in chapter 58.09 RCW, chapter 332-130 WAC and the provisions in chapter 58.17 RCW.
12/An exception to this requirement, however, involves the filing of corner information under RCW 58.09.040, supra. This latter provision requires certain information to be submitted within 90 days after the establishment, reestablishment or restoration of certain corners. This provision carries a possible revocation of a land surveyor's license in the event there is noncompliance. Where a plat containing a survey is rightfully refused for filing by the auditor, he can require the mandatory survey information to be filed in another form or require deletion of the impermissible subdivision from the survey, maps or documents.
13/RCW 58.17.190 requires the auditor to refuse to accept any plat for filing until approval of the plat has been given by the appropriate legislative body. RCW 58.17.160 requires approval of the city, town or county engineer.
14/See, RCW 58.17.060.
15/Accord, letter opinion to Honorable Jay Roy Jones, Prosecuting Attorney, Asotin County, dated January 30, 1978.