Shelton v. City of Bellevue
| Decision Date | 11 January 1968 |
| Docket Number | No. 39255,39255 |
| Citation | 435 P.2d 949,73 Wn.2d 28 |
| Court | Washington Supreme Court |
| Parties | Stanley SHELTON, Respondent, v. The CITY OF BELLEVUE, a Municipal Corporation, Appellant. |
Derrill T. Bastian, Seattle, for appellant.
Hullin, Ehrlichman, Roberts & Hodge, John D. Ehrlichman, Seattle, for respondent.
The city of Bellevue, Washington, appeals from a judgment of the trial court which (a) declares Bellevue's Zoning Ordinance No. 738 void as it relates to respondent's property, and (b) directs the issuance of a building permit to respondent. The dispositive question upon the appeal is whether the city of Bellevue, in amending its comprehensive development plan as a prelude to the adoption of zoning ordinance No. 738, satisfactorily complied with the procedural provisions of RCW 35.63.090, 35.63.100, and 35.24.220, as such relate to the necessity for a comprehensive plan, amendments thereto, certification and filing of amendatory ordinances and maps, and the publication of such amendatory ordinances and maps.
The pertinent events giving rise to this litigation may be chronicled in the following manner: The city of Bellevue was incorporated as a third class city in March, 1953. Ordinance No. 1, of the new city, created a planning commission pursuant to the authority of RCW 35.63 (). The planning commission developed a comprehensive zoning ordinance for the city as it then existed. This was presented to and adopted by the city council as ordinance No. 68 on September 28, 1954. Thereafter, on October 14, 1958, the city council adopted resolution No. 761, which, without specific reference to ordinance No. 68 or any other ordinance, purports to amend and adopt a comprehensive plan for the physical development of the city. Appended to and referred to in this resolution are three maps, designated as (1) a comprehensive land use plan, (2) a comprehensive park plan, and (3) a comprehensive street plan. None of these maps embraced the area encompassing respondent's property, which area lay generally to the east of the then city limits of Bellevue.
In 1962, respondent acquired his property, which consists of a triangular shaped piece lying in the southwest quadrant of the intersection of the Bellevue-Redmond Road and 140th Avenue, N.E., and sometime in 1964 the surrounding area, including respondent's property, was annexed to the city of Bellevue. Meanwhile, and seemingly as a result of a question arising as to the efficacy of the adoption of a comprehensive community development plan by resolution rather than by ordinance, the city council, on December 15, 1964, by ordinance No. 706 ratified and re-enacted the comprehensive development plan set forth in resolution No. 761. Appended to ordinance No. 706 were the three comprehensive plan maps attached to resolution No. 761 plus a fourth map designated as the comprehensive pedestrian circulation plan. Again, none of these plan maps embraced the area surrounding respondent's property. The ordinance, but not the maps, was duly published on December 17, 1964, and the ordinance and the maps, respectively, were later certified and filed with the county auditor. This ordinance, among other things, asserted:
1. PURPOSE. To define and establish the policy relating to the development of the community; to indicate the principles and objectives which shall guide the development of precise plans, public and private; to provide for the coordination of the many separate plans which govern the development of the community; to officially adopt a program and guide which will enable the City to attain the objectives set forth in Chapter 35.63 of the Revised Code of Washington, in the manner provided.
IV. MAPS.
A. Land Use. The Land Use Map illustrates in broad terms the foreseeable development of the City of Bellevue. The use areas shown indicate principles which are intended to guide the implementation of this development program.
Thereafter, and following hearings held in mid 1964 and early 1965, the city council on March 2, 1965, adopted ordinance No. 720, which reads:
AN ORDINANCE amending the Comprehensive Plan for the physical development of the City of Bellevue; adopting the Comprehensive Land Use Plan as received under Clerk's receiving no. 884, which includes the provisions of Comprehensive Plan Supplements No. 8A, 9 and 10; and amending Ordinance No. 706.
WHEREAS Resolution No. 761 adopted the Comprehensive Plan for the physical development of the City of Bellevue; and Ordinance No. 706 thereafter reaffirmed and re-adopted said Comprehensive Plan as then amended; and
WHEREAS said Resolution and Ordinance (1) direct the Planning Commission to continue to observe the development of the City in relation to the Plan, and (2) direct that, where development or the absence of development indicates a condition, a problem, a new element, or expansion, unforeseen and not anticipated or appreciated by the Plan, the Planning Commission shall study the subject; and
WHEREAS the Comprehensive Plan has been amended from time to time; and
WHEREAS after due study and deliberation the Planning Commission has made recommendation of a further amendment of the Plan to the City Council; now therefore.
THE CITY COUNCIL OF THE CITY OF BELLEVUE, WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. The Comprehensive Land Use Plan adopted by Ordinance No. 706, and filed under Clerk's receiving no. 857, is hereby amended by that certain Comprehensive Land Use Plan filed under Clerk's receiving no. 884, which is by this reference made a part hereof, and which latter instrument includes the provisions of Comprehensive Plan Supplements Nos. 8A, 9 and 10.
Section 2. This Ordinance shall take effect and be in force five (5) days after its passage, approval and legal publication.
Attached to ordinance No. 720, as enacted, was the Comprehensive Land Use Plan adopted by ordinance No. 706, and filed under clerk's receiving No. 857, upon which had been outlined the annexed area which included respondent's property together with proposed zoning classifications. This map, as amended, then was filed under clerk's receiving No. 884. Concurrently, with the enactment of ordinance No. 720, the city council passed resolution No. 1129, by which it adopted comprehensive plan supplements Nos. 8A, 9 and 10. Ordinance No. 720, but not the maps or resolution No. 1129, was then published on March 11, 1965. Concerning certification and filing with the county auditor, the trial court found the following situation, which the record sustains and with which appellant does not seriously quarrel:
(T)he City enacted ordinance 720, adopting four maps designated Clerk's file number 884, supplement 8A, supplement 9 and supplement 10, as the Comprehensive Plan for the new annexed area. These maps were not ever certified by the City Clerk.
The text of ordinance 720 was certified by the Clerk and filed with the County Auditor about six months after adoption.
The map designated file 884, uncertified, was filed with the County Auditor at the same time.
Maps 8A, 9 and 10 were not filed but were recorded with the County Auditor about eight days after this action was commenced. When recorded, they were in color photograph form, reduced ten times from actual size. They accompanied a copy of ordinance 720. The ordinance was certified. The photographs were not individually certified. Finding of fact No. 4.
Ordinance 720 contained a plan designated under Clerk's receiving number 884 (which is a part of the return in Exhibit C). At some time supplement 10 to the Comprehensive Plan of the City of Bellevue was adopted by the Bellevue City Council; it is a modification of the plan designated under Clerk's file 884. The colored photographs recorded in the Auditor's office included a photograph of supplement 10 but this photograph was not a duplicate of supplement 10 but included some changes of the supplement which is in evidence in this case as Exhibit 'E'. Finding of fact No 5.
Against this background, and after appropriate notice and hearing, the city council, upon recommendation of the planning commission, adopted ordinance No. 738 on April 20, 1965. This ordinance, describing the areas affected by metes and bounds, reclassified and rezoned the annexed area from its former county zoning classifications to city zoning classifications consistent with the land uses outlined upon supplement 10, as reflected by exhibit No. E referred to in the trial court's finding of fact No. 5. Generally speaking, the effect of ordinance No. 738 resulted in those properties within the newly annexed area lying south of the Bellevue-Redmond highway being classified as residential and those lying north of the highway as commercial. Respondent's property, abutting the highway on the sought and at the intersection of 140th Avenue, N.E., was accorded an R-S classification, which in addition to residential uses permits semipublic, nonretail uses, e.g., professional office buildings, churches, museums, clubhouses, municipal buildings, et cetera.
Conceiving that his property lent itself more valuably to service station use than to the designated uses, respondent, together with others similarly situated, petitioned the city council in August, 1965, for a change in classification from R-S zoning to that of a business zoning. This petition was, after various hearing, ultimately denied. Thereafter, in March, 1966, respondent commenced this action, and in April made application for a building permit to erect a service station upon his property. The application for a building permit was found by the city to be deficient in that the plans accompanying the application did not reflect adequate drainage culverts and the project had not been approved by the State Department of Fisheries as required by RCW 75.20.100. These deficiencies were remedied by respondent during the course of trial.
The trial court, in...
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