City of Seattle v. Martin

• Citation: 54 Wn.2d 541,342 P.2d 602
• Decision Date: 30 July 1959
• Docket Number: No. 34797,34797
• Parties: CITY OF SEATTLE, Respondent, v. Hurley MARTIN, Appellant.
• Court: United States State Supreme Court of Washington

Page 541

54 Wn.2d 541

342 P.2d 602

CITY OF SEATTLE, Respondent, v. Hurley MARTIN, Appellant.

No. 34797.

Supreme Court of Washington, Department 2.

July 30, 1959.

Frederick W. Post, Seattle, for appellant.

A. C. Van Soelen, Thomas J. Owens, C. V. Hoard, Seattle, of counsel, for respondent.

FINLEY, Judge.

On January 4, 1954, and for nine years prior thereto, the defendant used a vacant lot under a month-to-month tenancy arrangement as a place for the repair of various types of equipment employed in his construction business. On the above-mentioned date, the area in which the leased lot is located was annexed to the city of Seattle. The annexed area was zoned as 'first residence' property under the Seattle city zoning ordinance No. 45382 then in force. This ordinance significantly provides, in part, that

'In the First or Second Residence Districts, any nonconforming use of premises which is not in a building shall be discontinued within a period of one year from the date this ordinance shall become effective.'

Thus, on January 4, 1954, the use which defendant was making of the leased lot became a nonconforming use; furthermore, under the above-quoted provisions of the ordinance, he had one year to discontinue using the lot for the repair of construction equipment.

The defendant refused to discontinue this use of the lot. In 1957, the city of Seattle instituted the present lawsuit, charging defendant with violation of ordinance No. 45382. In the trial court the defendant was found guilty of violation of the ordinance. He has appealed.

His sole assignment of error is as follows:

'It was error to sustain a conviction under the ordinance because the defendant had acquired a property right in a use of the premises as a repair lot prior to January 4, 1954, and such conviction gave a retroactive effect to the ordinance which violated the defendant's rights under the State and federal constitutions. Also, the ordinance is discriminatory and hence unconstitutional.'

Appellant concedes that a criminal action lies for the offense at bar if the ordinance as applied to him is constitutional. He does not contend that the ordinance is unconstitutional in zoning the particular lot as first residence property. The question is whether the ordinance is invalid because it requires the termination of a nonconforming use in a period of one year after the zoning change became effective.

We have not heretofore passed directly on the question of whether a city may take affirmativ police power action to compel termination of a nonconforming use. However, in State ex rel. Miller v. Cain, 1952, 40 Wash.2d 216, 242 P.2d 505, 508, the court commented on the city's police power as it generally relates to control or regulation as contrsted to total elimination or termination of a nonconforming use. In Miller, supra, the court was concerned with an ordinance which restricted changes in nonconforming uses to repairs and alterations necessary to structural safety, and quoted with approval:

"The ultimate purpose of zoning ordinances is to confine certain classes of buildings and uses to certain localities. The continued exisence of those which are nonconforming is inconsistent with that object, and it is contemplated that conditions should be reduced to conformity as completely and as speedily as possible with due regard to the special interests of those concerned, and where suppression is not feasible without working substantial injustice, that there shall be accomplished 'the greatest possible amelioration of the offending use which justice to that use permits.' * * * Williams, Law of City Planning and Zoning, pp. 202, 203; Lathrop v. Town of Norwich, supra [111 Conn. 616, 623, 151 A. 183].' Thayer v. Board of Appeals of City of...