Durocher v. King County

• Decision Date: 06 January 1972
• Docket Number: No. 41919,41919
• Citation: 492 P.2d 547,80 Wn.2d 139
• Parties: Bruce E. DUROCHER and Frances M. Durocher, his wife, Plaintiffs-Respondents and Cross-Appellants, v. KING COUNTY, a municipal corporation; King County Council, Defendants-Appellants and Cross-Respondents, Weyerhaeuser Properties, Inc., a Washington corporation; and Stoneway Concrete, Inc., a Washington corporation, Defendants-Respondents and Cross-Respondents. WEYERHAEUSER PROPERTIES, INC., and Stoneway Concrete, Inc., Plaintiffs-Respondents and Cross-Respondents, v. KING COUNTY et al., Defendants-Appellants and Cross-Respondents, Bruce E. Durocher, Intervenor-Respondent and Cross-Appellant.
• Court: Washington Supreme Court

Page 139

80 Wn.2d 139

492 P.2d 547

Bruce E. DUROCHER and Frances M. Durocher, his wife, Plaintiffs-Respondents and Cross-Appellants, v. KING COUNTY, a municipal corporation; King County Council,

Defendants-Appellants and Cross-Respondents,

Weyerhaeuser Properties, Inc., a Washington corporation; and

Stoneway Concrete, Inc., a Washington corporation,

Defendants-Respondents and Cross-Respondents.

WEYERHAEUSER PROPERTIES, INC., and Stoneway Concrete, Inc., Plaintiffs-Respondents and Cross-Respondents, v. KING COUNTY et al., Defendants-Appellants and Cross-Respondents, Bruce E. Durocher, Intervenor-Respondent and Cross-Appellant.

No. 41919.

Supreme Court of Washington, En Banc.

Jan. 6, 1972.

Derrill T. Bastian, Seattle, Malcolm J. Bell, Seattle, for cross-appellants.

Lycette, Diamond & Sylvester, Lyle L. Iversen, Seattle, for respondent.

Montgomery, Purdue, Blankinship & Austin, John D. Blankinship, Seattle, for amicus curiae.

STAFFORD, Justice.

This is an appeal from a preliminary determination by the superior court that the King County Council's act of granting an 'unclassified use permit' was an administrative act not subject to referendum but that such action was void because the county council is without power, under the home rule charter, to act in an administrative capacity.

In September 1969, respondents, Weyerhaeuser Properties, Inc., for its lessee, Stoneway Concrete, Inc., (hereinafter referred to jointly as Weyerhaeuser) made application to King County for an 'unclassified use permit'. They sought authority to excavate sand and gravel and to establish a complete aggregate facility and asphalt batching plant on a 500-acre plateau in South King County.

The land for which the 'unclassified use permit' was sought is located in an area zoned 'G' (General), in section 24.24.020 of the King County Zoning Code (hereinafter called the code). A 'G' zone, as defined in section 24.24.010 of the code, is a classification, essentially rural in nature, designed to prevent premature establishment of urban land uses. 'Unclassified uses' identified in section 24.44.020 of the code are authorized provided a permit is obtained.

The application was received by the King County planning department which, without a hearing, made a report to the county council recommending that the 'unclassified use permit' be granted subject to certain specified conditions. The council held three public hearings on the application. Subsequently, in August 1970, the county council passed ordinance No. 00544, thereby granting the permit with conditions. The county executive permitted the ordinance to become law without his signature.

On August 31, 1970, the Durochers, who lived in the area, applied to the superior court for a writ of certiorari to review the county council's action in granting the permit. Also on that date, referendum No. 1, which seeks to refer ordinance No. 00544 to the voters of King County, was filed with the clerk of the county council.

Weyerhaeuser brought suit to enjoin the county council from processing and submitting the referendum to the voters. The Durochers intervened in the injunctive action. Certiorari was granted in their case, and the two causes were consolidated.

Before proceeding to the merits on either cause, the trial court decided two issues, the disposition of which forms the basis for this appeal: (1) Was the action of the King County Council in passing ordinance No. 00544 a legislative act? (2) Did the King County Council have any right to act upon the application for the 'unclassified use permit'?

On the first issue the trial court ruled that the granting of an 'unclassified use permit' is an executive or administrative function and is not a legislative function subject to referendum. On the second issue the court found that an 'unclassified use permit', under the code, is a type of 'conditional use permit' to be processed by the county planning department with an appeal to the board of appeals as provided in the charter. Based on that finding, the court held that granting of the 'unclassified use permit' by the Council was void. The referendum was enjoined and the Weyerhaeuser application for the 'unclassified use permit' was referred to the county planning department. The judgment was made the final disposition in both cases.

King County and the Durochers have appealed the trial court's decision that an 'unclassified use permit' is the same as a 'conditional use permit'. Additionally, King County has challenged the ruling that the county council's action in issuing an 'unclassified use permit' is void. The Durochers have cross-appealed, assigning error to the trial court's adjudication that the granting of the permit is an administrative act and not subject to referendum.

The Durochers raise two further issues. If the county council has authority to grant an 'unclassified use permit': (1) Did the procedure followed by the council in granting the Weyerhaeuser permit violate due process? (2) Are the Durochers entitled to a review, on the merits, of the council's action?

Each of the four issues will be considered separately.

I

Quare: Did the county council have the power to approve the Weyerhaeuser application for an 'unclassified use permit'?

Answer: Yes.

RCW 36.70 is the enabling statute which provides authority for, and the procedures to be followed by, a county in adopting and administering a comprehensive plan and zoning ordinance. Pursuant thereto, King County enacted its zoning code in 1963 and concurrently developed a comprehensive plan which was adopted in 1964.

The enabling statute provides that the board of county commissioners may adopt by ordinance 'official controls' which further the objectives and goals of the comprehensive plan. RCW 36.70.550. RCW 36.70.020(11), in pertinent part, defines 'official controls' as:

legislatively defined and enacted policies, standards, precise detailed maps and other criteria, all of which control the physical development of a county . . .. Such official controls may include, but are not limited to, ordinances establishing zoning . . .

Among the official controls adopted were those pertaining to 'unclassified uses' and 'conditional uses'. Section 24.44.010 of the code provides that certain uses are characterized as 'unclassified' because they possess:

characteristics of such unique and special form as to make impractical their being included automatically in any classes of Use as set forth in the various Classifications herein defined, and the authority for the location and operation thereof shall be subject to review and the issuance of a Use permit.

Acting pursuant to the enabling statute, the board of county commissioners enacted sections 24.44.020 and 24.44.030 of the code which list, respectively, those uses requiring 'unclassified use permits' ¹ and those for which 'conditional use permits' ² are required. Among the uses requiring 'unclassified use permits' are:

24.44.020(6) Quarrying and mining, including . . . the removal and processing of sand, gravel, rock . . . together with necessary Buildings apparatus or appurtenances incident thereto provided:

(c) in conjunction with such operations, allied Uses such as . . . rock crushers, concrete batching plants and asphalt batching plants may be authorized by the board . . .

The term 'unclassified use' is used neither in the enabling statute nor in the charter. In fact, one does not find it discussed in zoning literature, generally. Nevertheless, the board of county commissioners, in adopting the 1963 code, clearly differentiated between 'unclassified uses' and 'conditional uses'. One may attempt to distinguish the uses listed under the respective categories on the ground that those for which an 'unclassified use permit' is required have a wider community impact, both territorially and to the extent that their operation affects other municipal functions, than do those for which a 'conditional use permit' is required. But, irrespective of whether such a distinction can be made, nothing in the enabling statute proscribed the county from dealing with those varied uses in different ways. The board did not exceed the authority conferred upon it.

In establishing 'unclassified uses' the commissioners act as a legislative body exercising legislative powers. Absent a showing that their action was arbitrary and capricious, this court will not interfere. Lillions v. Gibbs, 47 Wash.2d 629, 632, 289 P.2d 203 (1955).

The enabling statute left to the board of county commissioners (I.e., the legislative body) the establishment of administrative rules and procedures for the processing of applications for such uses. The power to administer such zoning controls is also vested in that body. RCW 36.70.670 provides:

The board may determine and establish administrative rules and procedures for the application and enforcement of official controls, and may assign or delegate such administrative functions, powers and duties to such department or official as may be appropriate.

Additionally, it will be noted that the right to assign or delegate that power is given Solely to the legislative branch. Thus, unless assigned or delegated by it, the power remains with the board.

As originally enacted, the procedure for obtaining an 'unclassified use permit' differed from that for obtaining a 'conditional use permit'. Under chapter 24.60 of the code, the procedure for obtaining an 'unclassified use permit' consisted of an application to and a determination by the planning commission with a right of appeal to the board of county commissioners. Under chapter 24.58 the means of obtaining a 'conditional use permit' consisted of an application to the board of adjustment followed by 'an appeal to the superior court for a writ of certiorari, a writ of prohibition or a writ of mandamus'.

In 1968 the electors of King County, acting pursuant to Const. art. 11, § 4 (amend. 21), adopted a home rule charter ...