Anderson v. Island County, 42364

Decision Date12 October 1972
Docket NumberNo. 42364,42364
CourtWashington Supreme Court
Parties, 4 ERC 1777 Ray H. ANDERSON and Thea Anderson, his wife, et al., Appellants, v. ISLAND COUNTY, Respondent.

Patrick Zylstra & Pitt, Theodore D. Zylstra, Oak Harbor, for appellants.

Edward C. Beeksma, Island County Pros. Atty., Coupeville, for respondent.

FINLEY, Associate Justice.

The plaintiffs, as neighboring property owners, are appealing from a judgment of the Island County Superior Court upholding the decision of the County Commissioners to rezone, from residential to commercial, certain property owned by Island Sand and Gravel, Inc.

The Holmes Harbor area on South Whidbey Island is conflictingly described in the evidence and the parties' briefs as a 'lovely residential area' and as a 'mixed commercial and residential area for fifty years.' These conflicting contentions about the area constitute the primary considerations in the controversy about the proper zoning of the property involved in this appeal. The following chronological events are pertinent:

(1) On March 11, 1966, Island Sand and Gravel, Inc., purchased a 17-acre parcel of land in the Holmes Harbor area, and shortly thereafter Relocated its gravel operations to this tract.

(2) On December 5, 1966, following a series of public hearings, the Board of County Commissioners for Island County passed an Interim Zoning Ordinance which zoned the entire Holmes Harbor area, including the 17-acre tract in question owned by Island Sand and Gravel, Inc., as 'residential.'

(3) At or near the time of passage of the Interim Zoning Ordinance, Island Sand and Gravel, Inc., began construction of a Cement batching plant on the 17-acre site.

(4) In 1969, Island Sand and Gravel, Inc., apparently feeling that it was in a somewhat precarious position in continuing to operate as a 'nonconforming use', filed an application with the Island County Board of Adjustment for a Conditional Use Permit to operate a cement batching plant on the 17-acre tract. The applicant later withdrew this application upon being advised at the Board of Adjustment meeting that a Conditional Use Permit would not be granted to such an activity in a residential zone.

(5) On September 22, 1969, Island Sand and Gravel, Inc. filed an application with the Island County Planning Commission seeking to have the 17-acre tract rezoned from 'residential' to 'commercial'. After a public hearing, the requested zone change was denied on October 14, 1969.

(6) On October 21, 1969, Island Sand and Gravel, Inc., appealed this decision to the Board of County Commissioners for Island County. On January 12, 1970, following a public hearing, the Board of Commissioners changed the zoning classification of a portion of the 17-acre tract from residential to commercial. The rezoning left a 'green belt' of ten feet between the gravel company's batching plant operations and the land of neighboring property owners.

(7) Plaintiffs, residents of the Holmes Harbor area, instituted this certiorari proceeding to review the actions which resulted in the zoning change. The matter was considered by the trial judge in the superior court Solely upon the record of the proceedings before the Island County Planning Commission and the Board of Commissioners, and the argument of counsel. The court ruled and entered judgment for Island Sand and Gravel, Inc., sustaining the rezoning of the 17-acre tract by the Board of Commissioners. Plaintiffs have appealed this ruling.

Initially, respondent Island County contends that plaintiffs, as petitioners in this proceeding, lack standing to litigate the issues which are raised before this court upon the basis that no evidence exists to show that their interests are affected in any way by the judgment of the trial court. We do not agree. The pleadings state that petitioners are neighboring land owners whose quiet enjoyment of residence is threatened by the activities of the batching plant operated by Island Sand and Gravel, Inc., and by the rulings of the Board of Commissioners and the trial court in perpetuating and extending that operation. As residents of the larger zoning area in question, petitioners appear to have a sufficient 'protected interest' entitling them to a review of zoning action within the Holmes Harbor area. Jaffe, Standing Again, 84 Harv.L.Rev. 633 (1971). 'As the welfare of the whole community is at stake when the enforcement of the planning laws is in issue, there may be something to be said for permitting judicial review at the instance of a citizen, a resident, or a taxpayer.' 3 R. Anderson, American Law of Zoning § 21.05, at 558 (1968). See also Feiler, Zoning: A Guide to Judicial Review, 47 J.Urb.L. 319 (1969).

Petitioners contend that the Board of Commissioners for Island County lacked jurisdiction to grant the immediate application for rezoning, arguing that RCW 36.70.630 restricts the action of the Board of Commissioners to a modification of the recommendation of the Planning Commission after a public hearing on the issue, but does not permit the Board of Commissioners to overrule the denial by the Planning Commission of a request for a zoning change, as was done in the instant case. However, the superior court having ruled on this issue, petitioners have waived their right to argue this point by their failure to set forth the trial court's findings pertaining to the issue and failure to assign error thereto. ROA I--43; Valente v. Bailey, 74 Wash.2d 857, 447 P.2d 589 (1968); Locke v. Gaboriault, 70 Wash.2d 1011, 422 P.2d 309 (1967).

Petitioners' other contentions embrace the related charges that (1) the Board of Commissioners acted arbitrarily and capriciously in rezoning the property of Island Sand and Gravel, Inc., from residential to commercial, and (2) such a reclassification, under the circumstances, constituted 'spot zoning'. We approach review of these issues as we did in Smith v. Skagit County, 75 Wash.2d 715, 718, 453 P.2d 832, 835 (1969):

(W)here the record both at trial and on appeal consists entirely of written and graphic material--documents, reports, maps, charts, official data and the like--and the trial court has not seen nor heard testimony requiring it to assess the credibility or competency of witnesses, and to weigh the evidence, nor reconcile conflicting evidence, then on appeal a court of review stands in the same position as the trial court in looking at the facts of the case and should review the record de novo.

Accord: Carlson v. Bellevue, 73 Wash.2d 41, 435 P.2d 957 (1968); Bishop v. Town of Houghton, 69 Wash.2d 786, 420 P.2d 368 (1966). A de novo review of the record before this court, in our opinion, reveals not only a clear example of spot zoning, but arbitrary and capricious action by the Board of Commissioners as well in reclassifying the area in question as 'commercial' essentially for the primary benefit of the property owner, Island Sand and Gravel, Inc., without appreciable benefit to the interest of the public.

The nature of our standard of review in zoning cases was well-stated in State ex rel. Myhre v. Spokane, 70 Wash.2d 207, 210, 422 P.2d 790, 792 (1967):

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 abuse 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 asserts 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 (Ohio) v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016 (1926).

The task before this court then is to determine whether reasonable minds could differ in finding a substantial relation between the zoning action of the Board of Commissioners and the public health, safety, morals or general welfare. McNaughton v. Boeing, 68 Wash.2d 659, 414 P.2d 778 (1966); 8A E. McQuillin, Municipal Corporations § 25.279 (3d ed. 1965). 'Where there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.' Lillions v. Gibbs, 47 Wash.2d 629, at 633, 289 P.2d 203, at 205 (1955).

A review of the findings of fact made by the Board of Commissioners, as well as the testimony received at the public hearings, reveals that the pertinent bases of the Board's ruling were not supported by the evidence presented before it, indicating that any relation between the zoning action and the public interest was tenuous at best. The Board of Commissioners found the following:

1. A portion of the Zone Change Request was being used commercially at the time of the adoption of the Interim Zoning Ordinance in December 5, 1966, and at that time it was intended to zone all property being used as such in its existing use.

2. It has been our policy for anyone requesting a zone change to state his intent of use for the property to be rezoned. In this case a portion of his property is being used commercially, until plans are submitted for the remaining property the zone change approval is limited to that in existence.

3. Inspection and percolation tests submitted showed poor...

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