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AGO 1996 No. 5 - Feb 29 1996
A orney General Chris ne Gregoire
PLATTING AND SUBDIVISIONS - COUNTIES - CITIES AND TOWNS - Effect of 1969 Pla ng Act on land pla ed before enactment.
1. The requirements of chapter 58.17 RCW, enacted in 1969 and rela ng to pla ng and subdivisions, apply to land pla ed before 1937 under
chapter 58.08 RCW or its predecessor statutes.
2. Ci es and towns may accept plats and subdivisions filed pursuant to the 1937 pla ng act (chapter 58.16 RCW, repealed in 1969), but are not
obligated to do so.
********************
February 29, 1996
The Honorable Mary Margaret Haugen
State Senator
P. O. Box 40482
Olympia, WA 98504-0482 Cite as: AGO 1996 No. 5
Dear Senator Haugen:
By le er previously acknowledged, you have requested an opinion on the following ques ons:
1. Do the requirements of chapter 58.17 RCW, rela ng to pla ng and subdivision, apply to land pla ed under chapter 58.08 RCW,
before the enactment of chapter 58.17 RCW or its predecessor, chapter 58.16 RCW?
2. Do the requirements of chapter 58.17 RCW apply to land pla ed or subdivided under chapter 58.16 RCW, before chapter 58.16
RCW was repealed and replaced by chapter 58.17 RCW?
3. If the answer to either ques on 1 or ques on 2 is no, may a city or county nevertheless choose to treat a subdivision as valid,
without requiring further process under chapter 58.17 RCW?
BRIEF ANSWERS
For the reasons stated in the analysis below, we conclude, reaffirming AGLO 1974 No. 7, that land pla ed before enactment of the 1937
pla ng and subdivision act (chapter 58.16 RCW) is s ll subject to the requirements of current law (now chapter 58.17 RCW), at least to the
extent that such land has not already been developed. There may be factual issues as to the extent to which land pla ed before 1937 has been
sold into separate ownership to such an extent as to make the imposi on of current subdivision law so inequitable or unjust that the courts
would decline to apply current subdivision requirements to such land.
Since the 1937 pla ng and subdivision act, codified as chapter 58.16 RCW, was substan ally similar in scope to the 1969 act (chapter
58.17 RCW) which now controls, plats and subdivisions approved under the 1937 act were not invalidated by the enactment of the 1969 act,
unless inconsistent with statutory law.
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Effect of 1969 Platting Act on land platted before enactment
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Since land pla ed before 1937 under the territorial pla ng statute does not meet the requirements of current subdivision law, a county
or city lacks authority to accept such plats without conduc ng at least some review under current law.
ANALYSIS
Your ques ons are grounded in the history of pla ng and subdivision law. Before 1937, the only substan al procedural requirements
for pla ng were found in a series of statutes now codified in chapter 58.08 RCW and da ng (with some slight amendments) to an act of the
1857 Territorial Legislature. Laws of 1857, pp. 25-27; RRS §§ 9288 et seq. Plats before 1937 were simply recorded in the recorder's office of the
county in which the land lay. RCW 58.08.010. There was no requirement that plats be reviewed or approved by any government officer or
body.
Beginning in 1937, the Legislature (without ever repealing the core of what is s ll chapter 58.08 RCW) added addi onal prerequisites to
land subdivision and development. In chapter 186, Laws of 1937, the Legislature required that all plats and subdivisions comprising of five or
more lots be submi ed to the legisla ve or planning authority of the government having jurisdic on (city or town if within the corporate
boundaries of such a government, county otherwise). The Legislature also required authorized coun es, ci es and towns to enact ordinances
and regula ons se ng standards for plats and subdivisions within their respec ve jurisdic ons. The county auditors and assessors were
directed to refuse to accept for filing any plat, subdivision, or dedica on not properly approved. Laws of 1937, ch. 186, § 1 (formerly codified as
RCW 58.16.100).
The 1937 pla ng statute was in turn superseded with the enactment of a new pla ng of a subdivision code in 1969. Laws of 1969, Ex.
Sess., ch. 271 (codified as chapter 58.17 RCW). The 1969 act follows the same general pa ern as the 1937 act, in that coun es, ci es, and
towns retain the authority and responsibility to review and approve plats and subdivisions within their respec ve jurisdic ons, and to enact
local laws governing such approvals. The 1969 law adopts a new set of defini ons, is somewhat more specific in the ma ers covered, and
alters local governments' powers in a number of details. The 1969 act specifically repealed and superseded the 1937 act (Laws of 1969, Ex.
Sess., ch. 271, § 36). It amended the 1857 pla ng statute in one small respect (see Laws of 1969, Ex. Sess., ch. 271, § 34, amending
RCW 58.08.040), but otherwise le chapter 58.08 RCW unchanged.
Ques on 1.
Do the requirements of chapter 58.17 RCW, rela ng to pla ng and subdivision, apply to land pla ed under chapter 58.08 RCW, before the
enactment of chapter 58.17 RCW or its predecessor, chapter 58.16 RCW?
As you point out in your le er (supplemented by enclosures presen ng the problem in more detail), a good deal of land around the
state was pla ed before 1937, in the sense that plats had been filed with the county auditors striking land off into lots and showing their
boundaries. In some cases, the land was never developed as pla ed or sold off in individual lots, so that it remains to this day in undeveloped
parcels of varying sizes and pa erns of ownership. Your first ques on is whether, if a property owner now wishes to develop such a parcel
consis ng of part or all of a pre-1937 plat, the owner must comply with the requirements of the current (1969) act, chapter 58.17 RCW.
As you note in your le er, we have already answered this ques on. In AGLO 1974 No. 7[1], we concluded that chapter 58.17 RCW and
ordinances adopted pursuant to that chapter were fully applicable to a proposal to develop an old townsite, pla ed in about 1890 pursuant to
what is now chapter 58.08 RCW, but, which was, in 1974, s ll open grazing land substan ally in single ownership. We concluded that Okanogan
County could fully apply its then current land use requirements to this old plat, including the requirement that the land be re-subdivided and
new plats filed to meet current standards.
We have reviewed AGLO 1974 No. 7 and the authori es cited in it, and have read later cases and statutory material, and can find
nothing that would change the well-reasoned conclusions reached in the 1974 opinion. Chapter 58.17 RCW remains essen ally in its 1974
form, so there is no reason to reassess the legisla ve intent that the current law cover all "land" in the state. In a subsequent opinion, AGO
1980 No. 5, we impliedly followed the reasoning of AGLO 1974 No. 7 in concluding that the "resubdivision" of a lot pla ed under the 1937 act
would be governed by the 1969 act. Although the pla ng laws have been construed a number of mes by our courts in the past twenty years,
none of the cases shed direct light on the subject of your ques on.[2]
Accordingly, we conclude that AGLO 1974 was correctly decided and that its reasoning should be followed today. The reasoning was
based on three points, all equally forceful now: (1) the 1969 act covered all "land" and was not limited to land not yet pla ed or subdivided as
of its enactment; (2) the analogy of the zoning laws concerning "nonconforming uses" implies that the mere pla ng of land in the past gives
rise to no vested "right" to future sale or subdivision free of later-imposed land use restric ons; and, (3) the 1969 pla ng act was enacted for a
new and very different purpose than the old territorial pla ng acts. The third point is par cularly persuasive, in that the 1857 pla ng statute
was essen ally an aid to land conveyancing, in that it allowed property owners to file maps and surveys and to refer to lot and block numbers
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instead of describing property by metes and bounds. This was a convenience to the par es and probably served, through mapping and
surveying, to reduce boundary disputes, but was in no sense a "land use" law. By contrast, the 1969 statute specifically grants local
governments a wide measure of control over the way land is subdivided, sold, and developed.
We add a caveat to the discussion. AGLO 1974 No. 7 concerned open-land, never developed and s ll owned by one party. In such a
case, property owners can claim no serious prejudice if, before actually selling or developing such land, they are required to comply with the
1969 act and any ordinances and rules enacted under it. It is certain, however, that in addi on to the undeveloped old plats considered in the
1974 opinion, there are plats in the state which have been sold off and developed, or par ally so. Where a pre-1937 plat has long since been
sold, and now contains houses, shops, and streets, it may well be imprac cable to require that the land be repla ed under a new ordinance
passed since 1969. Since there is no way to an cipate and analyze all the factual variables, it would probably be prudent for any ordinance
implemen ng chapter 58.17 RCW to clearly specify the extent to which it requires repla ng of land pla ed under earlier laws, and to set up
substan ve standards and/or procedural op ons to handle the obstacles which may be encountered in dealing with par ally sold/par ally
developed plats.[3]
Ques on 2.
Do the requirements of chapter 58.17 RCW apply to land pla ed or subdivided under chapter 58.16 RCW, before chapter 58.16 RCW was
repealed and replaced by chapter 58.17 RCW?
As you note in your le er, AGLO 1974 No. 7 did not reach this ques on. The reasoning of the 1974 opinion points to an answer,
however. Whereas the 1969 pla ng act, like its 1937 predecessor, was intended to work "alongside" the old territorial pla ng laws,
supplemen ng them with new and different requirements, the 1969 act explicitly repealed the 1937 act. A comparison of the 1937 and 1969
acts reveals that they are substan ally similar, in that both go far beyond the mere recording of plats in requiring plat approval by the local
jurisdic on in which the land is located and in authorizing local governments to enact ordinances and regula ons concerning land use.
Although slightly less comprehensive than its successor, the 1937 act was a true "land use" statute.
If that is the case, a parcel of land pla ed in, say, 1953, unlike a parcel pla ed in 1890, has a plat which has been reviewed and approved
by a local government (a city, town, or county, depending on its loca on). In effect, it has a cer fica on that the plat met the local land use
standards that were in effect at the me of filing.[4] Furthermore, RCW 58.17.900 provided that
[a]ll ordinances and resolu on enacted at a me prior to the passage of this chapter by the legisla ve bodies of ci es, towns, and coun es and
which are in substan al compliance with the provisions of this chapter, shall be construed as valid and may be further amended to include new
provisions and standards as are authorized in general law.
It is conceivable, then, that the standards applicable to a 1953 plat could s ll be applicable today, and the language cited specifically allows
local governments to con nue using their pre-1969 ordinances except when inconsistent with the new statute.
Therefore, we conclude that land pla ed under the 1937 act is not automa cally subject to repla ng or addi onal requirements due to
the passage of the 1969 act, unless the original pla ng was inconsistent with the 1969 act itself. Local governments may, at their op on,
accept plats filed under the 1937 act unless, again, those plats are inconsistent with state statutory requirements.
However, we do not believe local governments are obligated to accept 1937-era plats, or precluded from enac ng new requirements
covering such land. That seems clear from the language in RCW 58.17.900 authorizing the amendment of pre-1969 ordinances, as well as the
general pa ern of both the 1937 and 1969 acts, which allow local governments to change their land use policies and amend or replace their
subdivision ordinances from me-to- me.[5] For reasons similar to those discussed above in answer to your first ques on, we will not a empt
to define just how far a city or county could go in requiring the repeated repla ng of previously pla ed land. The extent to which land has
actually been sold and developed under the earlier pla ng requirements would, again, be an important factor.
Ques on 3.
If the answer to either ques on 1 or ques on 2 is no, may a city or county nevertheless choose to treat a subdivision as valid, without
requiring further process under chapter 58.17 RCW?
We have already answered this ques on with respect to land pla ed under the 1937 act--the subject of ques on 2, by concluding that,
except where the original plat process is inconsistent with current statutory standards, a city or county may, at its op on, con nue to honor a
plat processed under chapter 58.16 RCW, the 1937 act.
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By contrast, however, we think the opposite answer is dictated as to land pla ed before 1937, by the reasoning of AGLO 1974 No. 7 as
reaffirmed above in the discussion of your first ques on. Plats recorded before 1937 have never borne the scru ny of any city or county, and
have never been evaluated for their consistency with any land use policies.
To accept such plats and allow their development without any review for consistency with current land use regula ons would result in
non-uniform applica on of the current laws. It may well be, however, that coun es and ci es would wish to adopt an alternate procedure for
reviewing such plats, since they have already been recorded with the county auditor, and in some cases have been par ally or fully developed.
We trust the foregoing will be useful to you.
Very truly yours,
CHRISTINE O. GREGOIRE
A orney General
JAMES K. PHARRIS
Senior Assistant A orney General
[1] From 1974 to 1982, our office issued a series of A orney General Le er Opinions (designated by AGLO numbers instead of the AGO series
used for published formal opinions) which were not published as formal opinions, but were considered to have official status. The policy of our
office is to adhere to official opinions previously issued unless the law or the facts have changed sufficiently to make an old opinion obsolete, or
unless we were firmly convinced that an old opinion was in error.
[2] In Gilmore v. Hershaw, 83 Wn.2d 701, 521 P.2d 934 (1974), the Supreme Court ruled that chapter 58.17 RCW was not retroac ve, in the
sense of giving par es the statutory right of rescission granted in chapter 58.17 RCW for a transac on involving land pla ed under chapter
58.16 RCW (the 1937 act). It does not appear that AGLO 1974 No. 7 was based on the no on that chapter 58.17 RCW is "retroac ve" in effect
however; rather, it imposes a new and separate set of substan ve standards and procedural prerequisites on land subdivided, sold, or
developed a er its effec ve date, whether or not a "plat" or map of such land had been previously recorded under chapter 58.08 RCW. Thus, I
conclude that Gilmore is not inconsistent with our 1974 opinion, which in any case involved quite a different topic.
[3] In Chelan County v. Wilson, 49 Wn. App. 628, 744 P.2d 1106 (1987), the court of appeals ruled that a county ordinance applying to "all
con guous real property in one ownership . . . ." did not apply to a plat substan ally sold off by an unrecorded real estate contract before the
new ordinance's enactment. The court reached its conclusion by interpre ng the language of the county ordinance itself, and thus did not
reach the ques on whether a county or city would have statutory and cons tu onal power to require re-pla ng of par ally-developed parcels.
[4] An excep on would be a "short" plat or subdivision containing less than five lots. These were not subject to the 1937 requirements, but the
1969 act authorized local governments to regulate them.
[5]Under RCW 58.17.170, a developer can rely on the approval of a plat for five years a er filing, unless the city or county makes extraordinary
findings to jus fy changing its rules.
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