Glaspey & Sons, Inc. v. Conrad, 612--42400--III

• Decision Date: 10 May 1973
• Docket Number: No. 612--42400--III,612--42400--III
• Citation: 8 Wn.App. 932,509 P.2d 762
• Court: Washington Court of Appeals
• Parties: GLASPEY & SONS, INC., Appellant, v. Les CONRAD et al., Respondents.

Page 932

8 Wn.App. 932

509 P.2d 762

GLASPEY & SONS, INC., Appellant, v. Les CONRAD et al., Respondents.

No. 612--42400--III.

Court of Appeals of Washington, Division 3.

May 10, 1973.

Rehearing Denied May 29, 1973.

Review Granted July 24, 1973.

Joel H. Paget, of Ryan, Carlson, Bush, Swanson & Hendel, Seattle, for appellant.

Lincoln E. Shropshire, Pros. Atty., Paul D. Edmondson, Deputy Pros. Atty., Yakima, for respondents.

GREEN, Chief Judge.

Plaintiff, Glaspey & Sons, Inc., appeals the denial of its application for a writ of certiorari to review the adoption of a zoning ordinance for Yakima County by the Board of County Commissioners.

Two issues are presented: (1) Was proper notice of hearing upon the proposed zoning ordinance given pursuant to RCW 36.70.630 and procedural due process? (2) Was RCW 36.70.630 or due process violated when the board, without additional notice, adopted amendments introduced at a hearing on December 29, 1971?

These issues should be considered in light of the fact that (1) petitioner appeared at a hearing before the Board of Commissioners on November 19, 1971, where the proposed ordinance was discussed; (2) pursuant to the claimed insufficient notice, its officers went to the commissioners' office prior to the hearing and examined the proposed ordinance; (3) petitioner appeared at the December 29 hearing, following which the commissioners adopted the ordinance as amended; (4) prior to the ordinance in question, Yakima County had no zoning ordinance; and (5) it is evident that the ordinance had been recommended to the commissioners by the planning agency after compliance with the notice procedures applicable to their function under RCW 36.70 and no objection was raised with respect to those procedures.

The first issue brings into question the notice of hearing published in the Yakima Herald Republic on December 17, 1971:

'NOTICE OF PUBLIC HEARING ON PROPOSED ZONING ORDINANCE AS

AMENDED FOR YAKIMA COUNTY

'Notice is hereby given that the Board of County Commissioners of Yakima County, Washington, will hold a public hearing at 2:00 P.M. Wednesday, the 29th day of December, 1971 in Room 420 of Yakima County Courthouse, Yakima, Washington, for the purpose of discussing the pros and cons of a proposed Zoning Ordinance as amended for Yakima County. A copy of said proposed ordinance, as amended, is available in the Yakima County Commissioner's office, Room 416, Yakima County Courthouse, Yakima, Washington.

'Dated this 16th day of December, 1971

IRENE TURNER

Deputy Auditor and Deputy Clerk Dec. 17.'

RCW 36.70.630 provides that if the board deems a change in the recommendations of the planning agency to be necessary, it shall conduct its own public hearing, giving notice as provided in RCW 36.70.590:

Notice of the time, place and purpose of the hearing shall be given by one publication in a newspaper of general circulation in the county and in the official gazette, if any, of the county at least ten days before the hearing. The board may prescribe additional methods for providing notice.

First, petitioner contends the published notice did not satisfy the requirements of RCW 36.70.590 and procedural due process. In support of this contention, petitioner argues the notice was insufficient because (1) it failed to state that the hearing was the last one on the ordinance before adoption; (2) it did not set out the ordinance in whole or in part thereby prompting affected persons of average prudence to inquire about the ordinance; and (3) it made no reference to the official zoning maps. We disagree.

A notice is generally sufficient under zoning statutes and due process where its contents reasonably apprise those interested that certain contemplated action is pending. See, Annot., 96 A.L.R.2d 497 (1964); Burlington v. Dunn, 318 Mass. 216, 61 N.E.2d 243 (1945); Ciaffone v. Community Shopping Corp., 195 Va. 41, 77 S.E.2d 817 (1953); Neuger v. Zoning Board of Stamford, 145 Conn. 625, 145 A.2d 738 (1958); Hewitt v. County Comm'rs, 220 Md. 48, 151 A.2d 144, 148--149 (1959); Heaton v. Charlotte,277 N.C. 506, 178 S.E.2d 352 (1971).

The instant notice clearly informed petitioner that the purpose of the hearing on December 29 was to discuss the pros and cons of a zoning ordinance. Such a hearing gives interested persons an opportunity to appear and express their views on the proposed zoning legislation so that those views can be considered by the commissioners, along with other factors in reaching a decision. See Smith v. Skagit County, 75 Wash.2d 715, 740, 453 P.2d 832 (1969). We do not believe RCW 36.70.590 or due process requires the commissioners to predetermine and state in the notice that it will be the last hearing. We agree with the reasoning in Hewitt v. County Comm'rs, Supra, where the court stated:

We do not think the statutory language could be construed as requiring the County Commissioners to state in advance (what they could hardly know) the exact nature of any action which they might take with regard to matters brought to their attention at the contemplated hearing. Indeed, it is difficult to see how (without either prejudgment or prophecy) the notice here given could have been much more explicit or informative than it was.

See Ciaffone v. Community Shopping Corp., Supra.

Neither due process nor RCW 36.70.590 required that the published notice set out the ordinance in whole or in part. Prior to the December 29 hearing, Yakima County had no zoning ordinance. The published notice informed the public that the commissioners were considering a zoning ordinance for Yakima County and that a copy of the proposed ordinance was available in their office. This notice was sufficient to place interested person upon inquiry with respect to the contemplated action. No more is required. Its sufficiency is demonstrated by the fact that petitioner, as a result of the notice, went to the commissioners' office and examined the proposed ordinance before the hearing.

The notice published was not defective in failing to refer to the content or availability of zoning maps. Section 3 of the proposed ordinance incorporates the official zoning map by reference and declares the map to be a part of it. Since the published notice stated that the proposed ordinance was available in the commissioners' office, the maps incorporated therein by reference were included in that notice and available upon inquiry. See Burmore Co....