Carlson v. City of Bellevue

• Decision Date: 11 January 1968
• Docket Number: 39159,Nos. 39081,s. 39081
• Citation: 73 Wn.2d 41,435 P.2d 957
• Court: Washington Supreme Court
• Parties: Kenneth CARLSON, Respondent, v. The CITY OF BELLEVUE, a Municipal Corporation, Appellant.

Page 41

73 Wn.2d 41

435 P.2d 957

Kenneth CARLSON, Respondent, v. The CITY OF BELLEVUE, a Municipal Corporation, Appellant.

Nos. 39081, 39159.

Supreme Court of Washington, En Banc.

Jan. 11, 1968.

Derrill T. Bastian, Seattle, for appellant.

Michael R. Donovan, bellevue, for respondent.

HAMILTON, Judge.

This appeal, like the appeal in Shelton v. City of Bellevue, filed concurrently herewith and reported in 435 P.2d 949 (1967), involves a petition to rezone the property of respondent, Kenneth Carlson, from a residential classification to that of a business classification, thus permitting the erection of a gasoline service station. The property here involved is a rectangular lot, 160 165 feet, lying in the southeast quandrant of the intersection of the Bellevue-Redmond Road and 148th Avenue, N.E., within the area annexed to the appellant, city of Bellevue, in April, 1964. A chronology of the procedures leading up to the adoption, by the city of Bellevue, of zoning ordinance No. 738 classifying respondent's, and other properties lying south of the Bellevue-Redmond Road, as R-S residential (a classification permitting multiple housing and nonretail business use) is recited in Shelton v. City of Bellevue, supra, and will not be repeated here, except as may be pertinent to the issues in this case.

The area annexed to the city of Bellevue in April, 1964, of which respondent's property is a part, was, prior to annexation, subject to the zoning regulations of King County. Between March, 1961, and April, 1964, respondent applied on three occasions to the King County Planning Commission and to the board of county commissioners for a rezoning of his property from S--1 (single residence) to B--1 (business). The first two applications were denied. On the third application, the zoning was changed to an R--3 classification, which is the same type of classification as R-S under the city of Bellevue's zoning ordinances.

After annexation the city continued the prevailing county zoning classifications in effect, under provisions of its comprehensive zoning ordinance until such time as the requisite area study, planning, and public debate permitted the extension and application of its comprehensive community development plan to the annexed area. This was accomplished by ordinance No. 720, enacted on March 2, 1965, which, in turn, was implemented by zoning ordinance No. 738 enacted on April 20, 1965.

Meanwhile, and in November, 1964, respondent applied to the city of Bellevue for a rezoning of his property from the outstanding R-S classification to a B-- 1 classification. After making studies and holding a number of public hearings concerning the application, the city's planning commission recommended that the application be denied. The city council, likewise, after several public hearings and some vacillation, denied the application. Respondent thereafter and on November 22, 1965, sought review of the city council's action by way of petition for writ of certiorari in the Superior Court for King County. By his petition, respondent challenged the validity of the procedural steps leadings up to the enactment of zoning ordinance No. 738 and asserted that the R-S classification placed upon his property thereby was arbitrary, capricious, unreasonable, confiscatory and void. The city was thereupon directed to make return to the superior court of all pertinent documents and records. This the city did, and the matter came on for hearing before the superior court in the early part of April, 1966.

The trial court, after reviewing the records before it, viewing the property, and hearing extended colloquy and argument of counsel, concluded that ordinance No. 738 had been validly enacted but that the zoning classification thereby applied to respondent's property was arbitrary, capricious, confiscatory, and void. Findings of fact, conclusions of law, and judgment were accordingly entered. The city then appealed. Respondent, however, filed with the city a request for a building permit and sought, in superior court, a writ of mandate compelling issuance of the permit. The superior court granted the writ of mandate, but afforded the city an opportunity to apply to this court for an order staying issuance of the permit until disposition of the appeal in the certiorari proceedings. This was granted and the city then gave notice of appeal in the mandamus proceedings. The two appeals were consolidated. The consolidated appeal was then heard before a department of this court, and thereafter set for reargument en banc with the case of Shelton v. City of Bellevue, supra.

We have, in the Shelton case, upheld the validity of the procedures leading up to Bellevue Zoning Ordinance No. 738 and the validity of that ordinance as it applied to the annexed territory embracing respondent's property. We need not now restate our reasons therefor.

The principal remaining issue raised by the respective contentions of the parties in the instant appeal revolve about the trial court's determination that the R-S zoning classification as applied to respondent's property is arbitrary, capricious, confiscatory, and void.

In approaching this issue, it is essential to bear in mind that

Zoning is a discretionary exercise of police power by a legislative authority. Lillions v. Gibbs, 47 Wash.2d 629, 289 P.2d 203 (1955). Courts will not review, except for manifest abuse, the exercise of legislative discretion. State ex rel. Smilanich v. McCollum, 62 Wash.2d 602, 384 P.2d 358 (1963). Manifest abouse of discretion involves arbitrary and capricious conduct. Such conduct is defined to be without consideration and in disregard of the facts. State ex rel. Lopez-Pacheco v. Jones, 66 Wash.2d 199, 401 P.2d 841 (1965); State ex rel. Cosmopolis Consol. School Dist. No. 99 v. Bruno, 61 Wash.2d 461, 378 P.2d 691 (1963). One who assets that a public authority has abused its discretion and is guilty of arbitrary, capricious, and unreasoning conduct has the burden of proof. State ex rel. Lopez-Pacheco v. Jones, supra; State ex rel. Longview Fire Fighters Union, Local 828 v. City of Longview, 65 Wash.2d 568, 399 P.2d 1 (1965). If the validity of the legislative authority's classification for zoning purposes is fairly debatable, it will be sustained. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016 (1926). State ex rel. Myhre v. City of Spokane, 70 W.D.2d 203, at 207, 422 P.2d 790, at 792 (1967).

In enacting zoning ordinance No. 738, the record indicates that the city of Bellevue, in accordance with its comprehensive development plan, is endeavoring to maintain an industrial 'core' lying north of the Bellevue-Redmond highway, and, with that highway as a boundary line, phase out the commercial and business uses into prime residential areas lying to the south of the highway.

Respondent, however, points to the fact that two gasoline service stations occupy the two northerly quadrants of the intersection directly across from his property and that this coupled with the fact that some preexisting business uses and some newly permitted ones in proximity thereto are allowed to operate south of the highway boundary, render the classification upon his property arbitrary and capricious. Furthermore, respondent contends, the fixing of the boundary line and the continuation of the R-S zoning classification upon his property, under the circumstances prevailing, diminishes the potential value of his property to such an extent as to render the zoning confiscatory. This is so, he asserts, because his property is located at a busy intersection, is adaptable to a gasoline service station use, and has been the subject of a $60,000 offer for such purpose, whereas it is worth little more than $2,500 as a multiple residence, nonretail or civic site.

The city, in response, argues that the phasing out process between business and residential areas is best accomplished by commencing the R-S classification at the selected boundary line, albeit some pre-existing business islands are permitted to continue and to a limited extent expand within the R-S zone. The R-S classification, the city points out, permits multiple residences as well as nonretail business, professional and civic uses, and such together with the pre-existing business islands, consisting primarily of a golf course and a shopping area, establishes an area wholly compatible which the modern 'buffer zone' concept between prime residential and industrial areas. To permit the boundary line between the buffer zone and the industrial area to be breached by exempting respondent's property, the city claims, would do aught but open the door for continued intrusion of business uses into the buffer zone. Moreover, the city contends, since respondent's property has never been classified as other than residential, the continuation of such a classification imposes no overwhelming individual hardship as opposed to the benefits inuring to the area as a whole in preserving an orderly development. And, the city says, respondent suffers no greater diminishment in the value of his property than others similarly situated along the highway.

It is at once apparent from a review of the arguments of the parties, the history of respondent's various applications for a rezoning of his property, and the letters and petitions submitted by local area residents to the city council for and against respondent's rezoning application, that the issue is 'fairly debatable.' This should ordinarily end the matter, for as indicated in the quotation from State ex rel. Myhre v. Spokane, supra, zoning is peculiarly within the province of the various legislative bodies empowered to act upon the matter, and courts should not, except in cases of manifest abuse of legislative discretion, seek...