Pierce v. King County, s. 36345

Decision Date13 June 1963
Docket Number36496,Nos. 36345,s. 36345
PartiesJames W. PIERCE, Paul Lutz, Donald L. Stevens and Robert Hail, Respondents, v. KING COUNTY, a municipal corporation, Respondent, Eastgate Improvement Company, Intervenor-Appellant. EASTGATE IMPROVEMENT COMPANY, Appellant, v. KING COUNTY, a municipal corporation, Respondent. EASTGATE IMPROVEMENT COMPANY, Appellant, v. KING COUNTY, a municipal corporation, Respondent, James W. Pierce, Paul Lutz, Donald L. Stevens and Robert Hail, Intervenor-Respondents.
CourtWashington Supreme Court

Michael R. Donovan, Bellevue, for appellants.

Hullin, Ehrlichman, Carroll & Roberts, Derrill T. Bastian, Seattle, for respondents.

HALE, Judge.

This is an appeal from judgments of the superior court in both certiorari and mandamus arising out of certain zoning resolutions in King County, Washington. The certiorari and mandamus proceedings were consolidated for the trial and this appeal.

Appellant, Eastgate Improvement Company, was part owner of and directly connected with the development of some two thousand acres of agricultural land east of Lake Washington in King County. When appellant and other corporations having common ownership acquired these extensive tracts in 1956, they had actually been zoned for agricultural purposes by the board of commissioners of King County. As the various areas were developed by the building and occupancy of residences in the area and the platting of the various districts, zoning changes were made to set aside areas for single-family residences, multi-family residences, clinics, churches and multifarious commercial uses. Indeed, the entire area was zoned from tiem to time to allow for the type of suburban life and activity which is now so familiar a scene at the rims of the nation's great cities.

In January, 1957, appellant requested the King County planning commission to rezone lots 7 and 8, block 10, Lake Hills Addition No. 3, from a single-residential classification to commercial, B-1, and the planning commission, after conducting public hearings and receiving evidence, complied with the request on March 26, 1957. About two weeks later, on April 8, 1957, the King County board of county commissioners accepted the planning commission's recommendation and, by resolution No. 17229, rezoned the two lots to B-1, for commercial purposes. The lots retained this classification for over a year. These two lots, 7 and 8, are the subject matter of the proceedings at bar.

In August, 1958, some sixteen months after the two lots had been rezoned from residential to commercial (B-1), a decision of the superior court case some doubt upon the validity of the county's zoning regulations. Whereupon, the board of county commissioners speedily enacted, in rapid succession, resolution No. 18800, a comprehensive zoning plan for King County, on August 11th, and resolution No. 18801, a zoning code, on August 12th. It was under this zoning code (resolution No. 18801, § 3.02), that the two lots involved here were zoned R-A (residential area), and uses allowed were single-family residences. The same resolution permitted properties then in use as commercial properties to be continued as nonconforming uses (resolution No. 18801, § 30.01), but provided that, if such nonconforming uses were discontinued, any future use thereafter must conform to the uses fixed by the zoning code.

At the time of the adoption of the zoning code (resolution No. 18801), the two lots were vacant, unimproved and unused, and bore a large sign which declared in bold letters that they were 'Zoned B-1 Business'. Despite the message of the sign, however, the zone classification under the resolution of August 12, 1958, was R-A (residential area), and the use permissible was single-family residences.

This R-A classification, single-residence use restriction, remained in effect until January 19, 1959, when the county commissioners promulgated zoning resolution No. 19295, which, by adopting a district zoning map of the south portion of district No. 22 and incorporating the map by reference in the resolution, zoned the two lots B-1, commercial. All property surrounding appellant's property for at least six blocks in any direction came under the R-7.2 classfication, including the property of the four respondent householders. The permissive use of this property was limited to single-family residences. B-1, commercial, classification means first commercial under the King County Zoning Code (resolution No. 18801), and would permit the construction of a gasoline service station thereon, together with numerous other uses which will be referred to later.

The crucial resolution, as we have indicated, is resolution No. 19295, which changed the permissive use of appellant's two lots from single-family residential to commercial, B-1.

Things remained quiet on the Lake Hills zoning front for nearly two and one-half years, when, in June of 1961, the appellant owner of the two lots sent surveyors on to the property in preparation for construction of a service station thereon.

Respondent householders reside across the street from the property in single-family residences. When they observed the surveyors on the premises, they made inquiry as to the building intended to be erected thereon, and, upon receiving an answer to their queries, promptly applied to the superior court for a writ of certiorari against King County to have the zoning provisions of the resolution of January 19, 1959 (No. 19295) declared invalid as to the two lots in issue.

Pending hearings upon the petition for certiorari, appellant applied to the King County engineer for a building permit. The county engineer, knowing of the pendency of certiorari, denied the permit, and ascribed the pendency of the certiorari as reason for the denial. Appellant then entered the certiorari proceedings as intervenor, and independently brought a separate action against the county engineer in mandamus to compel the latter to issue to it a building permit.

King County, a municipal corporation, sent up its records and files and made a return to the petition for certiorari to the superior court. The court subsequently entered judgment after trial declaring so much of resolution No. 19295 as purported to zone the two lots from R-A (residential area) to B-1 (commercial) to be null and void from its enactment and, accordingly, denied the writ of mandamus to compel the issuance of a building permit for the erection of a service station.

Together the lots constitute a small tract, approximately 120 feet by 143 feet. They form the apex of a rounded vee intersection. Lots adjoining in all directions for five or six blocks are zoned for single-family residential purposes and were so zoned at the time prior to adoption of resolution No. 19295.

The same resolution which designated appellant's two lots as B-1 (commercial) likewise established a sizable business center eight blocks to the west of appellant's property and a buffer strip for multiple-family dwellings (R-2) between the commercial zone proper and the single-family residential area.

This appeal raises three particular questions, and their resolution will determine the issues.

1. Assuming that the adoption of a zoning regulation is a legislative function, does certiorari lie to review it?

2. Is a petition for certiorari, brought within two and one-half years of the adoption of a zoning resolution, timely?

3. Does the designation of two lots for commercial purposes in general, and a gasoline service station in particular, in an area reserved and zoned for single-family residences, where the zoning regulations have designated an extensive business district approximately eight blocks away, constitute an invalid type of spot zoning?

Is certiorari a proper remedy to review the action of a zoning board? Doubt as to the properiety of employing certiorari as a remedy arises from the recognitation that the adoption of zoning regulations is a legislative function. Courts have been traditionally reluctant to interfere with the legislative process. This reluctance has, nevertheless, been overcome many times by the requirements of the circumstances. So, while zoning powers are generally held to be legislative in character, requiring as they do the exercise of legislative judgment and discretion, the courts have, in many jurisdictions, considered certiorari an effective instrument of review where it is shown prima facie that there exists no speedy and adequate remedy at law, and where, in addition, it appears the board or commission acted unreasonably, arbitrarily and capriciously, i. e., in excess of its jurisdiction.

That other remedies, such as injunction, mandamus, quo warranto, or declaratory judgments may be available in zoning problems does not rule out certiorari where it appears that the entire record of the proceedings, leading up to and surrounding the adoption of the regulation claimed to be invalid, will disclose the validity or invalidity of the regulation.

'Certiorari proceedings are ordinarily regarded as appropriate to review decisions of a zoning officer or board. * * *' 58 Am.Jur., Zoning § 233.

The precise question as to the remedy to be pursued was raised in Holly Development, Inc. v. Board of County Commissioners of Arapahoe County, 140 Colo. 95, 342 P.2d 1032, in which it is said:

'We turn first to defendant's answer brief, which urges that certiorari is not the proper remedy in this case. In this it is in error. Whenever the question is whether a public Board or Commission has exceeded its jurisdiction or abused its discretion, certiorari is the proper remedy to secure a review of its action. Rule 106, R.C.P. Colo. Also see Board of Adjustment of the City and County of Denver v. Handley, [et al.] 1939, 105 Colo. 180, 95 P. (2d) 823; Kane v. Board of Appeals of City of Medford, 1930, 273 Mass. 97, 173 N.E. 1; Clapp v. Knox County, [Tennessee] 1954, 197 Tenn....

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