Bishop v. Town of Houghton

• Decision Date: 17 November 1966
• Docket Number: No. 38117,38117
• Citation: 69 Wn.2d 786,420 P.2d 368
• Court: Washington Supreme Court
• Parties: Robert E. BISHOP, Joseph Gasper, David H. Round, Keith G. Abell, and Lake Washington Development Company, Respondents, v. The TOWN OF HOUGHTON, Appellant, Yarrow First Associates, Intervenor-Appellant.

Page 786

69 Wn.2d 786

420 P.2d 368

Robert E. BISHOP, Joseph Gasper, David H. Round, Keith G Abell, and Lake Washington Development Company, Respondents, v. The TOWN OF HOUGHTON, Appellant, Yarrow First Associates Intervenor-Appellant.

No. 38117.

Supreme Court of Washington, Department 2.

Nov. 17, 1966.

Rehearing Denied Feb. 6, 1967.

Vance, Davies, Roberts & Bettis, Coulter & Lee, C. Lee Coulter, Seattle, for appellant.

Hullin, Ehrlichman, Carroll & Roberts, Seattle, for respondents.

HAMILTON, Judge.

At the instance of respondents, property owners in the city of Bellevue and the town of Clyde Hill, the trial court declared certain high density zoning of an adjacent area of the town of Houghton to be void and of no effect. Yarrow First Associates, owner of the property in question and intervenor in this action, and the town of Houghton appeal. We reverse the action of the trial court.

The chronology of pertinent events giving rise to this action is as follows: In 1959--60, the town of Houghton pursuant to and in conformity with statutory authority (RCW 35.63) considered and adopted a comprehensive plan and implementing zoning ordinance. Under the plan and ordinance a sizeable area in the southwesterly portion of the town of Houghton was zoned as R--2, which permits high-rise multiple family residential construction. At about the same time, the property lying to the south immediately across the boundary of the town of Houghton and in the city of Bellevue and the town of Clyde Hill was being platted, zoned, and developed as a prime urban residential area with construction limited to single family homes which, because of a rise in elevation, would have a view looking north and west over portions of Lake Washington. At this time, no voice was raised in protect concerning the R--2 zoning in the town of Houghton.

During and following this period, discussion and planning was in progress relative to the establishment of the Evergreen Point bridge across Lake Washington and vehicular access thereto. Between 1960 and 1963 this planning culminated in the location of the bridge and the construction of an east-west limited access highway in such a fashion as to cut off and isolate from the town of Houghton a portion of the area which had been zoned as R--2. This severed area, as revealed on a map in evidence, scales approximately 2,200 feet in length, and ranges from 20 to 150 feet in depth. It is bordered on the north by the elevated grade of the limited access highway and on the south by the severed portion of a street known as Points Drive which also constitutes the southern boundary of the town of Houghton. The only access to the area is over the streets of the city of Bellevue and the town of Clyde Hill through the residential area developed and occupied by respondents. For a better understanding of the situation, we incorporate at this point an illustrative sketch taken from our decision in Yarrow First Associates v. Town of Clyde Hill, 66 Wash.2d 371, 403 P.2d 49 (1965). The property here in issue is a portion of the west half of the dotted area lying immediately north of Points Drive, and embraces an area of about 80,000 square feet.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

As construction of the highway progressed, appellant-intervenor noted the pertinent area and its R--2 zoning classification, contemplated the construction of a high-rise apartment building, and during 1962 acquired an option on the property. After verifying the zoning classification with appropriate officials of the town of Houghton, obtaining soil tests, investigating utility services, and consulting an architect and builder, appellant-intervenor, between April and July, 1963, exercised the option and purchased the property for a substantial sum. Thereafter, appellant-intervenor secured preliminary sketches of the proposed high-rise apartment building and, on August 16, 1963, filed application with the building department of the town of Houghton for a building permit predicated upon the preliminary drawings. Upon payment of a $1,300 fee, appellant-intervenor was issued a building permit conditioned upon final plans and specifications being in accordance with the requirements of the Uniform Building Code of the town of Houghton.

In the meantime, respondents became aware of appellant-intervenor's plans for utilizing the property. After unsuccessful efforts to discourage appellant-intervenor, respondents, on October 29, 1963, addressed a letter to the City Council of the town of Houghton requesting that the comprehensive zoning plan be amended and the area in question be rezoned from R--2 to R--1 single family residence zoning. This application was referred to the Planning Commission of the town of Houghton and a public hearing was scheduled for January 6, 1964, notice of which was published on December 12, 1963. Before the scheduled hearing and on December 24, 1963, respondents commenced this action praying that the court declare the pertinent R--2 zoning classification void upon the grounds that conditions had so changed since the 1960 enactment of the zoning ordinance as to render it unreasonable and arbitrary when applied to appellant-intervenor's property. An ex parte order directing the town of Houghton to maintain the status quo was issued, which was subsequently modified to permit processing of respondents' petition before the planning commission and the city council.

On January 6, 1964, respondents' request came on for hearing before the planning commission. At this hearing, testimony and evidence in favor of and in opposition to the request were presented and debated. Thereafter, and on February 17, 1964, the planning commission denied respondents' petition, stating its reasons as follows:

Denial of requested rezone is recommended because:

1. This parcel of land is not suitable as R--1 Single Family Residential property for the following reasons:

a) the terrain is not conducive to single family residences

b) the land is situated below the grade of the highway

c) it is questionable whether the land could be practically platted and developed as R--1 property without producing an undesirable residential neighborhood.

2. In order debate both the petitioner and and land owner made the point that regardless of the PC's action on this matter a rezoning would not effect existing application for a building permit. In view of this, it was felt it is not in the interest of the City of Houghton to create long-range non-conforming uses.

Following this decision of the planning commission, a hearing was held before the Houghton City Council on March 9, 1964. Again respondents' proposal was debated, and thereafter, on March 23, 1964, the city council affirmed the recommendation of the planning commission.

Trial of this action commenced in November, 1964, consumed several days, and resulted in judgment declaring the R--2 zoning of the area involved void.

Respondents' basic theory in the trial court and here is that the interposition of the limited access highway rendered the existing zone of the severed parcel immediately incompatible with the town of Houghton's comprehensive zoning plan and with the contiguous residential zone to the south, and that continuance of such zoning classification was unreasonable and amounted, in effect, to spot zoning. From this premise, respondents reason that the failure of the town of Houghton to initiate appropriate amendatory or rezoning action in 1961, when the route of the highway was determined, constituted arbitrary and unreasonable inaction rendering the existing zoning classification void as of 1961. Thus, respondents argue, appellant-intervenor's application for a building permit in 1963 gave rise to no vested rights and, furthermore, that the 1964 action of the Planning Commission and City Council of the town of Houghton was ex post facto and of no consequence.

The trial court adopted respondents' theory. In doing so, the trial court admitted and considered evidence not presented to or passed upon by Houghton's Planning Commission or City Council at their 1964 hearings. Furthermore, the trial court,...