Parkridge v. City of Seattle

• Decision Date: 05 January 1978
• Docket Number: 44604,Nos. 44603,s. 44603
• Citation: 89 Wn.2d 454,573 P.2d 359
• Parties: PARKRIDGE, a Washington partnership, Riley W. Pleas and Nancy Pleas, husband and wife, Max A. Gurvich and Helen Gurvich, husband and wife, and Dwight F. Henderson and Dorothy Henderson, husband and wife, Respondents, v. The CITY OF SEATTLE, a Municipal Corporation, Appellant. PARKRIDGE, a Washington partnership, Riley W. Pleas and Nancy Pleas, husband and wife, Max A. Gurvich and Helen Gurvich, husband and wife, and Dwight F. Henderson and Dorothy Henderson, husband and wife, Respondents, v. The CITY OF SEATTLE, a Municipal Corporation, and Alfred Petty, Superintendent of Buildings, Appellants.
• Court: Washington Supreme Court

Page 454

89 Wn.2d 454

573 P.2d 359

PARKRIDGE, a Washington partnership, Riley W. Pleas and

Nancy Pleas, husband and wife, Max A. Gurvich and Helen

Gurvich, husband and wife, and Dwight F. Henderson and Dorothy Henderson, husband and wife, Respondents, v. The CITY OF SEATTLE, a Municipal Corporation, Appellant.

PARKRIDGE, a Washington partnership, Riley W. Pleas and

Nancy Pleas, husband and wife, Max A. Gurvich and Helen

Gurvich, husband and wife, and Dwight F. Henderson and Dorothy Henderson, husband and wife, Respondents, v. The CITY OF SEATTLE, a Municipal Corporation, and Alfred

Petty, Superintendent of Buildings, Appellants.

Nos. 44603, 44604.

Supreme Court of Washington, En Banc.

Jan. 5, 1978.

John P. Harris, Corp. Counsel, Gordon F. Crandall, Asst. Corp. Counsel, Seattle, for appellant.

Montgomery, Purdue, Blankinship & Austin, John D. Blankinship, Jerry W. Spoonemore, Seattle, for respondents.

Roger M. Leed, Seattle, for amici, Capitol Hill Community Council.

HICKS, Associate Justice.

These two cases were consolidated for trial in the Superior Court. On appeal, the Court of Appeals continued the consolidation and certified the cases to this court.

The first case, called the "rezone case", follows from a writ of certiorari issued to review the action of the Seattle City Council in rezoning from apartment construction to single-family use eight lots and two half-lots adjacent to Volunteer Park, but separated from it by 15th Ave., E. The second case, called the "vested rights case", follows from a writ of mandate sought to require the city to issue a building permit for the construction of an apartment house on the same lots. In the "rezone case" the trial court voided the rezoning, and in the "vested rights case" the court directed the city to continue processing the building permit application promptly, diligently and in good faith. We affirm the trial court.

In 1957, the City of Seattle adopted a comprehensive plan and a new zoning ordinance. Block 29, Capitol Hill Addition (No. 4), was classified as RS 5000 (single-family, high-density, residential zone), except Lot 28, a corner lot on East Galer Street, which was zoned BN (neighborhood business). Two years later in 1959, the city rezoned Lots 15-27 of Block 29, to RM 800, a classification permitting apartment construction.

In 1963, the city engaged a planning firm to determine the best locations for high-density apartment use. In 1964, a report was submitted to the planning commission rating 12 areas in the city as suitable for high-rise apartments. Lots 15-27 were in one of those areas.

After reading the planning report, Parkridge, in 1966 and 1967, purchased Lots 17-24 and the easterly portions of Lots 15-16 with the intention of constructing an apartment house thereon. Parkridge's petition to have these lots rezoned for high-rise development was denied. Thereafter, the market for apartments softened and plans for the development of the site were postponed.

Some years later, the city ordered Parkridge to repair to code, close or demolish certain of the structures on this property. December 5, 1973, Parkridge applied to the city for a permit to demolish one of the houses covered by the city's order. Pursuant to a private arrangement, someone in the city's building department notified a group known as the Capitol Hill Community Council or Capitol Hill Land Use Review Board of the demolition application.

December 10, 1973, the superintendent of buildings received a letter written by one who had received notification of the demolition application. The letter demanded that the city require an environmental impact statement prior to issuing the demolition permit and suggested that specific information be sought from Parkridge. Four days later the city notified Parkridge that it would require a comprehensive environmental assessment of the developer's total plans, including the information specified in the letter. Parkridge did not agree to provide an environmental assessment at that time and no demolition permit was issued.

January 4, 1974, the above-mentioned letter writer and a group of Capitol Hill residents filed a petition to rezone the Parkridge lots from apartment use to single-family residential use. Parkridge dropped its efforts to obtain a demolition permit and on February 7, 1974, applied to the city for a building permit for the construction of a 60-unit apartment building and paid the required $1200 fee.

Following various hearings of the planning commission and the city council's committee on planning and urban development, the council acted on the rezone petition. Disregarding a recommendation from its planning commission to rezone to RM 1600 (multiple-residence, lowest density), the city council voted on June 24, 1974 to rezone in accordance with the Capitol Hill petition to RS 5000 (single-family residential use), and passed ordinance No. 103510 to that effect. The mayor signed the ordinance on June 26, 1974, and 30 days later it became effective. Parkridge responded by filing a petition for certiorari to review the action of the city council, thus beginning the "rezone case".

After examining Parkridge's application for a 60-unit apartment building, the building department's environmental section requested a "complete environmental assessment". On April 9, 1974, Parkridge employed the planning firm of Clark, Coleman & Rupeiks, Inc. to satisfy this request. At the time of trial, $4,484.20 had been paid to this firm by Parkridge and the final billing had not yet been made.

On August 1, 1974, the building department sent Parkridge a form letter notifying it that where no action is taken on a building permit application for 6 months, the drawings submitted with the application will be destroyed 1 month after written notice to the permit applicant. In response to that letter, Parkridge's architect, Hawley Dudley, met with Walter Green, a representative of the building department. At that meeting Mr. Dudley learned of a possible change in the method of computing the square footage of a site, which in turn determines the number of units permitted under the building code. On the advice of Mr. Green, Parkridge modified its plans by reducing its building from 60 units to 50 in order to avoid a possible conflict on the appropriate measure. On August 28, 1974, Parkridge's attorney advised the building department that corrections in plans were being made and the environmental assessment adjusted accordingly. Mr. Dudley continued to meet with building department and traffic engineer personnel.

In November 1974, Mr. De-En Lang, of the planning firm employed by Parkridge, reported to the city regarding the assemblage of environmental information. Despite this fact, on December 4, 1974, the city building department advised Parkridge that under the building code the time for acting on its application had expired. On December 31, 1974, Parkridge delivered a 52-page (plus appendices) draft of an environmental impact statement to the building department.

Responding to the submission of the environmental data, the superintendent of buildings sent Parkridge a letter on January 3, 1975, listing eight reasons for refusing to proceed with the processing of the permit application. The last reason was that the site was not properly zoned to permit apartment development. After some correspondence between Parkridge's attorney and the building department, the building department notified Parkridge on January 27, 1975, that it was standing firm and would take no further action on the building permit application.

On March 4, 1975, Parkridge sought a writ of mandate to compel the superintendent of buildings to proceed in good faith with the processing of the application for a building permit. Thus, the "vested rights case" was commenced.

In the "rezone case", the trial court held that ordinance No. 103510 rezoning the Parkridge property was void because, (1) the decision to rezone the property was unsupported by credible evidence and was, therefore, arbitrary and capricious; (2) the rezoning of the property resulted in an inverse spot zone; (3) council members who did not attend the hearings failed to listen to tape recordings of the hearings, denying due process of law and an appearance of fairness; and (4) the city failed to comply with the State Environmental Policy Act of 1971 (SEPA). We agree that the decision to rezone was arbitrary and capricious and since that determination is dispositive of this case, we do not consider the other issues decided by the trial court. We do, however, comment below on the requirement of a verbatim record.

Because review of the action of the city council in this instance was invoked by writ of certiorari, we look to our certiorari statutes, particularly RCW 7.16.120(4) and (5), which state:

The questions involving the merits to be determined by the court upon the hearing are:

(4) Whether there was any competent proof of all the facts necessary to be proved, in order to authorize the making of the determination.

(5) If there was such proof, whether there was, upon all the evidence, such a preponderance of proof, against the existence thereof, rendered in an action in a court, triable by a jury, as would be set aside by the court, as against the weight of evidence.

In this case, the trial court determined there was no credible evidence before the city council that would support a decision to rezone the Parkridge property.

Without a verbatim record, it is most difficult to review the council's action in this matter. The trial court, a judge of wide and lengthy experience, was unable to find from the evidence that the rezone bore, as it must, a substantial relation to the public health, or safety, or morals, or welfare. Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210, 86 A.L.R. 654 (1928); State ex rel. Modern Lumber & Millwork Co. v. MacDuff, 161 Wash. 600, ...