Besselman v. City of Moses Lake, 33180
| Decision Date | 07 March 1955 |
| Docket Number | No. 33180,33180 |
| Citation | 46 Wn.2d 279,280 P.2d 689 |
| Court | Washington Supreme Court |
| Parties | S. BESSELMAN, Plaintiff, v. The CITY OF MOSES LAKE, a municipal corporation, Defendant and Relator, The Superior Court for Grant County, Max Church, Judge, Respondent. |
Cunningham, Ries & Kenison, Moses Lake, for plaintiff.
Moberg & Calbom, Moses Lake, for respondent.
S. Besselman seeks to compel the city of Moses Lake to rezone three lots with state highway frontage from R-2 (residential) to M-1 (industrial). This the city in effect refuses to do unless Besselman will at his expense provide certain drainage or give the city an easement for a drainage ditch across one of his lots.
If, as the city contends, Besselman has created a drainage problem and a nuisance by filling his lots, the city is not without a remedy. That it can condemn an easement for a drainage ditch seems to be unquestioned.
The city's effort to make the remedy of the drainage problem a condition precedent to the exercise of its power and authority to rezone certain lots, while a practical way of accomplishing the desired result (if the property owner is of a mind to bargain and wants the rezoning badly enough to meet the city's demands), is not to be commended. The ethical overtones of the city's procedure are not our present concern. There can, however, be no question but that the trial court was correct in its statement that in demanding such a consideration for the rezoning, the position of the city was 'arbitrary, coercive, and ultra vires,' but no official action of the city is before us for review. This is not the case of a rezoning ordinance with a condition attached thereto which could be attacked as unlawful or ultra vires, but an unofficial refusal (and a failure by the city council), to pass an ordinance rezoning the lots in question. It is this inaction of the city of which Besselman complains.
The city council cannot be compelled to pass a rezoning ordinance, however fair, reasonable, and desirable it may be, as that represents an exercise of legislative discretion. State ex rel. Ogden v. City of Bellevue, 1954, Wash., 275 P.2d 899.
The familiar principle of the division of powers is decisive of the case, and we cannot direct the city council of Moses Lake how to exercise its legislative discretion. The judgment heretofore entered directing the city council to grant the petition of S. Besselman for the rezoning of his three lots must be reversed,...
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Zylstra v. Piva, 43485
...unnecessary delay.' Const. art. 1, § 10. We have recognized and applied the doctrine of separation of powers in Besselman v. Moses Lake, 46 Wash.2d 279, 280 P.2d 689 (1955), and Tacoma v. O'Brien, 85 Wash.2d 266, 534 P.2d 114 (1975). In furtherance of the principle of separation of powers w......
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Chrobuck v. Snohomish County, 41145
...in this case. In previous cases we have, to some extent, clarified the legality of concomitant agreements. In Besselman v. Moses Lake, 46 Wash.2d 279, 280 P.2d 689 (1955), the municipality refused to rezone three of plaintiff's lots from residential to industrial use unless he provided it w......
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Teed v. King County
...act which cannot be compelled by a writ of mandamus. Lillions v. Gibbs, 47 Wash.2d 629, 289 P.2d 203 (1955); Besselman v. Moses Lake, 46 Wash.2d 279, 280 P.2d 689 (1955); see Lund v. Tumwater, 2 Wash.App. 750, 472 P.2d 550 (1970). The Teeds concede that generally courts should not impose eq......
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Cobb v. Snohomish County
...be permissible exercises of the police power authorized by statute or ordinance. Id. at 215-217, 422 P.2d 790; Besselman v. Moses Lake, 46 Wash.2d 279, 280 P.2d 689 (1955). ...
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...of government. Const, art. 4 § 1. . . . We have recognized and applied the doctrine of separation of powers in Besselman v. Moses Lake, 46 Wn.2d 279, 280 P.2d 689 (1955), and Tacoma v. O'Brien, 85 Wash. 2d 266, 534 P.2d 114 (1975). Zylstra v. Piva, 85 Wash. 2d 743, 754, 539 P.2d 823, 829 (1......