Chestnut Hill Co. v. City of Snohomish

• Citation: 458 P.2d 891,76 Wn.2d 741
• Decision Date: 18 September 1969
• Docket Number: No. 39750,39750
• Court: United States State Supreme Court of Washington
• Parties: CHESTNUT HILL COMPANY, a Washington corporation; Delta Rehabilitation Center, Inc., a Washington corporation, Appellants, v. CITY OF SNOHOMISH, et al.

Page 741

76 Wn.2d 741

458 P.2d 891

CHESTNUT HILL COMPANY, a Washington corporation; Delta

Rehabilitation Center, Inc., a Washington

corporation, Appellants, v. CITY OF SNOHOMISH, et al.

No. 39750.

Supreme Court of Washington, En Banc.

Sept. 18, 1969.

Rehearing Denied Oct. 30, 1969.

H. S. Sanford, Seattle, for appellant.

Nicolai, Montgomery & Sorrel, Max R. Nicolai, Seattle, Frank B. Carr, City Atty., Snohomish, for respondent.

McGOVERN, Judge.

Appellants prosecute this appeal from an order dismissing a writ of certiorari directed to the city of Snohomish and its city council following the enactment of that city's ordinance No. 987. The result of the ordinance was a zone classification of R--2 for appellants' property, thus permitting the operation of a nursing home thereon subject to a conditional use permit. Appellants sought an R--3 classification which would have allowed them to operate the home without the necessity of a permit.

Prior to purchase by the appellants in the year 1955, the property involved in this proceeding was used by the state of Washington as a tuberculosis hospital. Since then, appellants have operated a nursing home on the premises under authority of a state license. Additionally, they have admitted former mental patients to the home for purposes of assisting them in their social rehabilitation efforts.

The property in question is rectangular in shape, fronting on Terrace Avenue to the west and on a county road to the east. It is 660 feet wide and 1,386 feet deep. Until annexed by the city of Snohomish, all of its outer boundaries adjoined county property, except for a 300-foot wide area extending along its southern border, running easterly from Terrace Avenue. Along that stretch of land it adjoined the city to the south.

Property to the west was zoned rural residential 9600 by Snohomish County. A low density residential development is thus permitted, as is the operation of a nursing home subject to a conditional use permit. Mr. K. L. Schilaty resides in that area in one of the single family residences.

The 300-foot wide strip of city property adjoining appellants' land to the south has been improved with homes since about 1960 and is zoned R--1 (single family residence). Other property to the south is undeveloped. To the north of appellants' land is undeveloped acreage and to the east is an industrial area.

July 21, 1964, when appellants' property was located outside the city limits, ordinance No. 955, a comprehensive zoning law, was adopted by the city of Snohomish.

May 4, 1965, at appellants' request, its property was annexed to the city of Snohomish by ordinance No. 974.

June 17, 1965, the city planning commission recommended to the city council that appellants' property be zoned R--2.

July 22, 1965, the city council gave notice of public hearing for the purpose of considering recommendations of the planning commission.

August 3, 1965, a public meeting of the city council regarding proposed ordinance No. 987 was held.

November 15, 1965, a new definition of nursing homes was recommended by the planning commission and, on January 18, 1966, adopted by the city council.

February 1, 1966, ordinance No. 987 was adopted by the city council. By its terms, the westerly 128 feet of appellants' property was zoned R--1 (single residence), and the remainder zoned R--2 (multiple residence), permitting the operation of a nursing home subject to a conditional use permit.

Petition for writ of certiorari to the Superior Court in Snohomish County resulted and this appeal followed its denial.

Appellants' assignments of error basically contend that: (1) comprehensive zoning ordinance No. 955 is void in that the city failed to adopt a comprehensive plan prior to the adoption of the ordinance; (2) ordinance No. 987 is void as arbitrarily and capriciously adopted, not related to the general welfare of the community and as based on a void ordinance, No. 955; (3) the appointment of K. F. Schilaty to the planning commission was an abuse of the city's police powers and deprived the appellants of a fair, honest, and impartial hearing; (4) ordinance No. 996 redefining 'nursing homes' and amending ordinance No. 955, is void for failure of the city to publish notice of public hearing concerning it, and because it is discriminatory as to appellants.

The record indicates that the Shohomish City Council adopted a comprehensive zoning plan for the city on October 31, 1961. That plan was in the form of a large map of the city, scaled to size. The zoning classification of each area within the city was indicated on the map by the color ascribed to the area. A copy of that comprehensive plan map, bearing the necessary legend for purposes of identifying the zoning classifications by color, was, after adoption, filed in the office of the Snohomish County Auditor. The plan was made available to the trial court at the time of the hearing. A copy of zoning ordinance No. 955, the city's comprehensive zoning ordinance, was also produced for the court. Its extensive provisions covering the various zoning classifications, standards, permissive uses and other pertinent matters was obviously designed with the comprehensive planning map in mind. In fact the ordinance makes direct reference to the plan. Upon examining the map and the ordinance, the zoning classification of any and all property located within the city, the uses permitted, the restrictions attached to them, and the effect of such restrictions on the property is quickly ascertainable.

In Shelton v. City of Bellevue, 73 Wash.2d 28, 36, 435 P.2d 949, 954 (1968), we stated:

(W)e turn to what we deem to be the two decisive questions posed by the contentions of the parties in the instant appeal, namely: (1) Is the formal, written articulation and adoption of a comprehensive municipal plan, as distinguished from a comprehensive zoning regulation, a condition precedent to the enactment of a valid zoning regulation? and (2) * * *?

We think both questions must be answered in the negative.

The negative answer to the first question flows logically from our conclusion in the case of City of Medina v. Rose, Supra (69 Wash.2d 448, 418 P.2d 462 (1966)), wherein we held that a comprehensive zoning regulation could, by itself, reveal and constitute a comprehensive zoning plan, so long as it was 'definite, certain, precise and clear in its terms and gave notice of its restrictions' and was 'geographically comprehensive.' As we have heretofore indicated, this approach is in accord with the view adopted by other courts. See, for example, Kozesnik v. Montgomery Township, Supra (24 N.J. 154, 131 A.2d 1 (1957)); Angermeier v. Borough of Sea Girt, 27 N.J. 298, 142 A.2d 624 (1958); Higginbotham v. City of the Village, 361 P.2d 191 (Okl.1961); and also Haar, In Accordance with a Comprehensive Plan, Supra (68 Harv.L.Rev. 1154 (1955)). Furthermore, we are of the opinion that the pertinent sections of RCW 35.63 do not compel the formal adoption of a specific and separately articulated comprehensive plan by the legislative body of a municipality.

Based on the foregoing we hold that the comprehensive zoning map and ordinance No. 955 meet the requirements of RCW 35.63 and that the assignment of error is without merit.

Appellants' next contention relates to the validity of ordinance No. 987, zoning their property R--2. They contend that it was first necessary to amend comprehensive zoning ordinance No. 955 so as to include appellants' property, and that the city failed to do so. The record reveals that ordinance No. 955 was amended by the adoption of ordinance No. 987. The latter provides in part:

Sec. 3. The City Council hereby directs that the zoning map of the City be amended by the addition thereto of the area as described in, and zoned as determined in, Sec. 2 above under the direction of the City Clerk.

Section 2 described appellants' property. There is no merit to the assignment of error. The concurrent amendment was sufficient.

Appellants then insist that there was no showing that ordinance No. 987 was related to the general welfare of the community and is therefore void. They also contend that the city was arbitrary and capricious in adopting it. It is urged that the necessity of procuring a conditional use permit substantially reduces the value of their property because without change in the ordinance, or reclassification of the property, they will be allowed to operate the nursing home for only 25 years on the conditional use permit.

In State ex rel. Myhre v. Spokane, 70 Wash.2d 207, 210, 422 P.2d 790, 792 (1967), we explained that

(z)oning 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).

With...