RESUBDIVISION OF LOT WITHIN EXISTING SUBDIVISION(1)

COUNTIES ‑- CITIES AND TOWNS ‑- PLATTING AND SUBDIVISIONS ‑- RESUBDIVISION OF LOT WITHIN EXISTING SUBDIVISION

When, within an existing land subdivision established pursuant to either chapter 58.16 or chapter 58.17 RCW, the owner of an individual lot proposes to divide it into a number of smaller lots for the purpose of sale or lease, while such action constitutes a "resubdivision" as defined in RCW 58.17.020(6) and is, thereby, subject to the general provisions of chapter 58.17 RCW relating to subdivisions (AGO 1980 No. 5), the subdivider is not, in addition, required to vacate his existing lot or lots pursuant to chapter 58.11 RCW or alter the plat pursuant to chapter 58.12 RCW; if, however, the vacation of a plat or part thereof entails the vacation of a county road, one or the other of the procedures set forth in chapter 58.11 RCW and chapter 36.87 RCW, respectively, must be utilized.

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                                                                  March 14, 1980

Honorable Patrick D. Sutherland
Prosecuting Attorney
Thurston County
2000 Lakeridge Drive S.W.
Olympia, Washington 98502                                                                                                               Cite as:  AGLO 1980 No. 12

Dear Sir:

            By letter previously acknowledged, you requested our opinion regarding the relationship between chapters 58.11, 58.12 and 58.17 RCW.  Specifically, you asked:

            1.         Must a platted lot or lots, created at any time and in any manner other than by short subdivision pursuant to RCW 58.17.060 or "large lot" subdivision pursuant to RCW 58.17.040(2), be vacated pursuant to Chapter 58.11 RCW or altered or replatted pursuant to Chapter 58.12 RCW before the lot may be redivided in any manner pursuant to Chapter 58.17 RCW?

             [[Orig. Op. Page 2]]

            2.         To what extent, if any, would the answer to Question No. 1 be affected by the fact that the original platted lot was created by short subdivision pursuant to RCW 58.17.060 or by "large lot" subdivision pursuant to RCW 58.17.040(2)?

            3.         If the vacation of a plat or part thereof entails the vacation of a county street, do the vacation requirements of RCW 58.11.010,et seq., and Chapter 36.87 RCW apply?

            We answer your questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            In AGO 1980 No. 5 we recently concluded that:

            "Where, within an existing land subdivision established pursuant to either chapter 58.16 or 58.17 RCW, the owner of an individual lot proposes to divide that lot into four or fewer smaller lots for the purpose of sale or lease, such action will not constitute the establishment of a 'short subdivision' as defined in RCW 58.17.020(6) and, thereby, be subject to the city or county's short subdivision ordinance as enacted pursuant to RCW 58.17.060; instead, such action will constitute a 'resubdivision' and thus be subject to the general provisions of chapter 58.17 RCW relating to subdivisions."

            Question (1):

            As we understand it, the essence of your first question is whether, in addition to thus complying with the requirements of chapter 58.17 RCW relating to subdivisions, it is legally necessary for a person owning a lot or lots within an existing subdivision who desires further to divide that lot or lots to:

            (a) Vacate the existing lots pursuant to chapter 58.11 RCW; and/or

            (b) Alter the plat pursuant to chapter 58.12 RCW.

             [[Orig. Op. Page 3]]

            In posing this question, you further asked us to assume that:

            ". . . the proposed redivision entails, in the first instance, only the creation of new lot lines and not the alteration of any existing lines . . .; in the second instance, an alteration of the plat only to accommodate a road and new lots . . .; in the third instance, a change in existing lot lines . . .; and in the fourth instance, not the alteration of a lot or road line but rather a change in a condition of approval of the original plat, for example a deletion of an open space dedication or reservation."

            You also supplemented your request with three drawings illustrating the first three of these four assumptions.  In drawing "A", what is identified as Lot 9 in an existing subdivision would be divided into three numbered smaller lots.  In drawing "B", the same Lot 9 would be divided into four smaller lots, each facing a cul-de‑sac created by the extension of an adjacent county road.  And in drawing "C", Lot 9 and adjoining Lot 10 (both presumably in common ownership) would first be combined and then divided into ten smaller lots also including a cul-de‑sac and an extension of the county road.

            Clearly, each of these three cases would constitute a "resubdivision" within the meaning of so much of RCW 58.17.020(1) as defines the term "subdivision" as:

            ". . . the division of land into five or more lots, tracts, parcels, sites or divisions for the purpose of sale and lease and shall include all resubdivision of land."  (Emphasis supplied)

            Accord, AGO 1980 No. 5, supra.  On the other hand, the fourth case described in your letter (involving only a change in a condition of approval of the original plat) would not constitute such a "resubdivision" but, instead, would be governed by chapter 58.17 RCW only as an amendment, in effect, to a previously established plat.  It is our considered opinion, however, that none of the actions described additionally fall under, or require compliance with, either chapter 58.11 or chapter 58.12 RCW.

             [[Orig. Op. Page 4]]

            (a)Chapter 58.11 RCW:

            This RCW chapter codifies several sections of the territorial code of 1881 and relates, generally, to the vacation of any street, alley, lot or common in either an unincorporated (RCW 58.11.010) or an incorporated (RCW 58.11.040) town.  The only apparent purpose of this territorial legislation, however, was to facilitate the removal from dedicated status of land previously dedicated for some public use in connection with the formation or proposed formation of a town.  See, RCW 58.11.030 and 58.11.050.  Therefore, as we read it, the provisions of chapter 58.11 RCW have nothing to do with any of the hypothetical cases described in your letter.

            (b)Chapter 58.12 RCW:

            This chapter codifies the provisions of chapter 92, Laws of 1903, and involves the vacation or alteration of an existing plat.  The first section thereof, RCW 58.12.010, reads as follows:

            "That whenever three‑fourths in number and area of the owners of any townsite, city plat or plats, addition or additions, or part thereof, shall be desirous of altering the plat or plats, replatting or vacating the same or any part thereof, they may prepare a plat or plats, showing such alterations or replat, drafted upon a copy of the existing plat or plats, or that portion desired to altered, replatted or vacated, and file the same with the clerk of the board of county commissioners, or city council or other governing body having jurisdiction of the establishment or vacation and control of the streets to be affected, accompanied with a petition for the change desired:  PROVIDED, That this section shall not be construed as applying to the alteration, replatting or vacation of any plat of state granted, tide, or shore lands."

            The remaining sections of the chapter, RCW 58.12.020 through 58.12.080 then spell out what is to be done in response to such a petition‑-along with the legal consequences of  [[Orig. Op. Page 5]] such action.  Again, however, we can see no basis for saying that compliance with this chapter is required in order to further subdivide a lot or lots within an existing subdivision in the manner contemplated by your question.

            In the first place, chapter 58.12 RCW is simply not mandatory but, rather, constitutes only one of several alternative approaches to the alteration of an existing platted subdivision.  Accord, our letter opinion of November 15, 1978, to the Pend Oreille County prosecuting attorney, copy enclosed, in which we said:

            ". . .  Chapter 58.12 RCW, to which you have referred, covers only one of those methods; namely, the alternation of a plat (presumably long in existence) on the basis of a petition signed by at least three quarters of the '. . . number and area of the owners . . .' of land comprising the plat.  Alternatively, however, an existing platted subdivision may be altered by the subdivider himself upon compliance with the applicable provisions of chapter 58.17 RCW dealing with replatting.  And finally, a new platted subdivision may be created within an existing subdivision through the process of further platting and subdividing a single lot within the original subdivision."

            And secondly, as we also then went on to say in that same letter opinion, the provisions of chapter 58.12 RCW are, in any event,

            ". . . only pertinent in those instances in which the alteration is being initiated by property owners within the subdivision involved and amounts to something other than simply the creation of a new, smaller, subdivision through the process of dividing a single lot within an existing subdivision."

            Accord,Hamilton v. Link-Hellmuth, Inc., 104 Ohio App. 1, 146 N.E.2d 615 (1957), recently cited with approval in Bersos v. Cape George Colony Club, 4 Wn.App. 663, 434 P.2d 485 (1971).

            We therefore answer your first question, as above set forth, in the negative.

             [[Orig. Op. Page 6]]

            Question (2):

            Next you have asked:

            To what extent, if any, would the answer to Question No. 1 be affected by the fact that the original platted lot was created by short subdivision pursuant to RCW 58.17.060 or by "large lot" subdivision pursuant to RCW 58.17.040(2)?

            Conceivably, had we, instead, answered question (1) in the affirmative, we might nevertheless have distinguished the cases referred to therein from either the "large lot" or the "short subdivision" situations.  Having answered question (1) in the negative, however, there obviously is no need to attempt making such a distinction.  The provisions of chapter 58.11 and 58.12 RCW, supra, are at least equally inapplicable, in terms of some form of mandatory compliance here.

            Question (3):

            Your third and final question, as we understand it, does not involve any of the four hypothetical cases referred to in connection with questions (1) and (2),supra.  This question asks:

            If the vacation of a plat or part thereof entails the vacation of a county street, do the vacation requirements of RCW 58.11.010, et seq., and Chapter 36.87 RCW apply?

            We have already noted chapter 58.11 RCW in our response to question (1).  Clearly, it constitutes one method of vacating a county road.  Specifically, RCW 58.11.010 provides that:

            "Any person interested in any town not incorporated, who may desire to vacate any lot, street, alley, common, or any part thereof, or any public square, or part thereof, in any such town, may petition the board of county commissioners for the proper county.  The petition shall set forth the facts pertinent thereto, with a description of the property to be vacated, and shall be filed in the office  [[Orig. Op. Page 7]] of the county auditor.  The auditor shall give notice of the time and place of hearing on the petition before the commissioners, by posting notice thereof, containing a description of the property to be vacated, in three of the most public places in said town, at least twenty days before the hearing."

            Chapter 36.87 RCW also deals, among other things, with the vacation of county roads upon the petition of freeholders residing in the vicinity thereof.  See, RCW 36.87.020 and 36.87.030.

            We would regard chapters 58.11 RCW and 36.87 RCW as authorizing alternative methods for the vacation of a county road.  Moreover, as far as we know, they are the only methods.  Therefore, if the vacation of a plat or part thereof entails the vacation of a county road, one or the other of these two laws must be utilized.  But it is not necessary to comply with both.

            This completes our consideration of your questions.  We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

ROBERT F. HAUTH
Senior Assistant Attorney General