J & B Development Co., Inc. v. King County

• Decision Date: 27 July 1981
• Docket Number: No. 9413-1-I,9413-1-I
• Citation: 631 P.2d 1002,29 Wn.App. 942
• Court: Washington Court of Appeals
• Parties: J & B DEVELOPMENT CO., INC., Appellant, v. KING COUNTY, Respondent.

Page 942

29 Wn.App. 942

631 P.2d 1002

J & B DEVELOPMENT CO., INC., Appellant, v. KING COUNTY, Respondent.

No. 9413-1-I.

Court of Appeals of Washington, Division 1.

July 27, 1981.

Short & Cressman, Douglas R. Hartwich, Brian E. Lawler, Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., Robert Johns, Susan Agid, Deputy Pros. Attys., Seattle, for respondent.

CALLOW, Judge.

J & B Development Company appeals from a decision of the superior court that King County is not liable for damages sustained by J & B when they were ordered to stop construction of a single family house which purportedly violated the zoning code. We hold that King County may be subject to liability for negligently administering the zoning and building codes.

J & B is engaged in the business of acquiring vacant residential property and constructing single family houses thereon for rental purposes. J & B has constructed and leased over 120 houses in King County, all of which follow the same basic design. The owners of J & B also operate a real estate agency, a building supply company, and another construction company. They are familiar with the provisions of the county's zoning and building codes.

In 1978, J & B acquired a lot in south King County that abuts South 136th Street to the north for a distance of 77 feet and 10th Avenue South to the west for a distance of 283 feet. The right-of-way for 10th Avenue South along the J & B property is only 30 feet wide, with an asphalt roadway located within the right-of-way. The right-of-way widens to 60 feet both to the north and south of J & B's lot. King County has set 48 feet as the minimum right-of-way along residential access streets such as 10th Avenue South. The existing 30-foot right-of-way was dedicated and developed many years earlier as part of an adjacent subdivision. To widen the street, land would have to be acquired from J & B's lot.

Prior to purchasing the lot, J & B shareholder William Yenter contacted the King County Building and Land Development Division and discussed the property with an unidentified county employee. Yenter learned that the lot was zoned RS-7200, single family residential, and that the previous owner had applied to short subdivide the property. A copy of the short-subdivision application and preliminary approval was furnished Yenter. The preliminary approval indicated that a condition of approval would be a dedication of an additional 18 feet of right-of-way along 10th Avenue South to make the street a full width public street.

The plot plan prepared by J & B proposed to locate the house lengthwise along South 136th Street, with all access to the house from that street. The west end of the proposed house was set back 10 feet from 10th Avenue South. J & B submitted the plot plan together with a building permit application to B.L., a permit technician for King County. As submitted, the plan failed to provide the additional setback required by King County Code § 21.48.110, which provides:

A building or structure shall not be erected on a lot which abuts a street having only a portion of its required width dedicated and where no part of such dedication would normally revert to said lot if the street were vacated, unless the yards provided and maintained in connection with such building or structure have a width or depth of that portion of the lot needed to complete the road width plus the width or depth of the yards required on the lot by this title, if any. This section applies to all zones.

Neither J & B nor B.L., the permit technician, detected any errors with the application. B.L. approved the application without observing from the official King County Kroll ¹ map that the subject property had a sub-standard right-of-way and that an additional setback would be required along 10th Avenue South pursuant to King County Code § 21.48.110.

Following issuance of the permit, J & B surveyed, excavated and leveled the property, and also placed the foundation forms. As required by the building code, J & B requested a foundation and setback inspection by the King County Building and Land Development Division. Inspector R.A. visited the lot and examined the foundation and setback. He did not detect the setback error and approved the project. Ten days later, as a result of complaints from neighboring landowners, the county discovered the error and issued a directive to stop work. J & B was ordered to relocate the house to provide an additional 18-foot setback.

J & B commenced a lawsuit challenging King County's authority to order the additional setback or, alternatively, demanding compensation for the relocation of the house. The County obtained partial summary judgment upholding the constitutionality of King County Code § 21.48.110. The court also held that enforcement of the setback requirement was not a compensable taking of J & B's property and that the County was not estopped from imposing the additional setback upon J & B. After a trial limited to J & B's claim of negligence, the trial court held that county employees acted without due care but nevertheless dismissed the claim on the ground that the zoning and building codes imposed no duty upon King County to act with care in the issuance of building permits or inspection of property. This appeal followed.

J & B first challenges the County's contention that King County Code § 21.48.110, which requires an additional setback if a street has only a portion of its "required width" dedicated, applies to their property simply because the county's "standard road width" is 48 feet. J & B argues that by "required width," the ordinance means the width required of any particular street by the county when that street was originally dedicated, whether by condemnation, formal subdivision, or short subdivision. Since the county originally chose to require a 30-foot right-of-way along this portion of 10th Avenue South, J & B contends that the road has all of its required width dedicated.

We hold that the county's "standard road width" is analogous to a road's "required width." Affidavits submitted by the County reveal that where, as here, a street straddles a property line and the land on only one side is undergoing development, the county's practice has been to require dedication of land on only that side of the street, with King County Code § 21.48.110 operating to reserve a right-of-way along the undeveloped side in order to permit widening when that property is developed. In this case, the western 30 feet of 10th Avenue South was developed over 20 years before as part of an adjacent subdivision. The lot acquired by J & B has been undeveloped since that time. King County Code § 21.48.110 insures that a right-of-way will be reserved to permit widening of 10th Avenue South when circumstances warrant, and the ordinance applies to J & B's property.

Second, J & B urges us to hold that King County Code § 21.48.110 is an unreasonable and unconstitutional exercise of the county's police powers. J & B points to evidence that a primary purpose of the ordinance is to hold down the expense of future road expansion and asserts that this purpose bears no substantial relation to the public health or general welfare.

The burden of establishing the invalidity of a legislative enactment rests on the party asserting its unconstitutionality. Every presumption will be indulged in favor of constitutionality, and a court will overturn a municipal exercise of legislative authority only for manifest abuse of discretion. Duckworth v. Bonney Lake, 91 Wash.2d 19, 586 P.2d 860 (1978). Duckworth summarized the test to determine whether municipal zoning legislation meets constitutional requirements:

Municipal zoning ordinances enacted pursuant to such statutory authority will be held constitutional as a valid exercise of the police power if they bear a substantial relation to the public health, safety, morals or general welfare.... Two inquiries must be made when measuring such legislative enactments against the permissible bounds of the police power.

The initial inquiry is whether the legislation tends to promote the public health, safety, morals or welfare.... If it does, the wisdom, necessity and policy of the law are matters left exclusively to the legislative body....

The second inquiry is whether the legislation bears a reasonable and substantial relation to accomplishing the purpose established by the first inquiry....

The two inquiries cannot be made in a vacuum. The public interest to be promoted or the evil to be corrected and the relationship of the legislation to this public purpose must be determined. To this end the court necessarily engages in certain presumptions.... If the court can reasonably conceive of a state of facts which would warrant the legislation, those facts will be presumed to exist. Further, it will be presumed that the legislation was passed with reference to those facts....

(Citations and footnote omitted.) Duckworth v. Bonney Lake, supra at 26-27, 586 P.2d 860.

The County filed affidavits with the trial court which suggested five legitimate objectives served by the ordinance: (1) promotion of automobile and pedestrian safety through better vision; (2) safer street design by widening the street along the additional right-of-way; (3) conformity with the setbacks of other houses in the area, providing open space and better visibility, light, and air; (4) reduced impact on homeowners when the county undertakes to complete the roadway; and (5) cohesion in the county road development program, permitting the street to be widened as vacant property is developed. In connection with the fifth objective the County submitted the affidavit of Terence Brunner, a planner for the King County Building and Land Development Division. Brunner's affidavit outlined the county's policies regarding the improvement of streets as previously unused land is developed:

Implementation of this principle occurs...