Smith v. Skagit County

Citation453 P.2d 832,75 Wn.2d 715
Decision Date17 April 1969
Docket NumberNo. 39675,39675
CourtUnited States State Supreme Court of Washington
PartiesN. L. SMITH, Appellant, v. SKAGIT COUNTY; Northwest Aluminum Company, Inc., a corporation; and Jessie T. Ivy, Respondents. Evan NELSON, Harriet Adams and Clair Heilman, Appellants, v. SKAGIT COUNTY; Northwest Aluminum Company, Inc., a corporation; and Jessie T. Ivy, Respondents.

Hullin, Ehrlichman, Roberts & Hodge, John D. Ehrlichman, Seattle, for appellants.

Harry A. Follman, Pros. Atty., K. R. St. Clair, Deputy Pros. Atty., Mount Vernon, Jones, Grey, Kehoe, Bayley, Hooper & Olsen, Albert Olsen, Seattle, for respondents.

HALE, Judge.

Guemes Island is a quiet place. It has no industry or commerce, no hustle of traffic, no crime--and no police. The air above it is pure and sweet, and the waters around it sparkling and clean. It lies at the eastern end of the San Juan archipelago--one of a group of inordinately beautiful islands. Its southern shore running nearly parallel to the mainland about 1 mile south at Anacortes, forms the north shore of Guemes Channel, a deep water body capable of carrying the largest ships afloat. Framed by inviting beaches, highlighted with open fields and wooded uplands, this beautiful island affords the residents there a peaceful pastoral haven for their homes and several beach and park areas for public recreation. When the Skagit County Commissioners, after years of intensive zoning study and planning, reserved Guemes Island for residential and recreational purposes only, they were simply recognizing what was universally accepted as the highest and best purposes for the use of the land.

The county commissioners now would make drastic and vital changes in the comprehensive zoning plan and interim zoning ordinance and maps, thus initiating this controversy. Very few people--even those who live on Guemes--question that the county needs more heavy industry, but the controversy swirls around the question of whether it shall be allowed on Guemes or kept within the presently zoned industrial districts, and whether a change of conditions has taken place recently which would warrant the county government drastically altering the existing zoning scheme to allow a large aluminum reduction plant on Guemes.

The main issues to be considered on appeal--although we see several others--are whether, in amending the comprehensive plan, interim zoning maps and ordinance in order to zone a large waterfront tract on the south shore for heavy industry, the hearings and procedural steps taken to accomplish the rezoning meet the basic requirements of fairness and due process demanded by the zoning statutes and whether the rezoning constituted an illegal spot zoning. The question of fairness in a public hearing unfortunately, we think, cannot be resolved with reasonable clarity without first making a detailed account of the actions which led originally to zoning Guemes Island exclusively residential- recreational, and comparing them to the procedures which culminated in the industrial zoning now under attack. The magnitude and complexity of the original zoning studies, when contrasted with what appears to us to be the summary and hurried steps taken to rezone the island, make clear that the public hearing failed to meet the measures of fairness required by law.

Petitioners brought a petition in superior court for a writ of certiorari or, in the alternative, a writ of prohibition to bar the planning commission and Board of Commissioners of Skagit County from rezoning a tract of land on Guemes Island from wholly residential-recreational to industrial. From a judgment denying the petition, comes this appeal. The learned trial judge has favored the record with a memorandum opinion which, however helpful, inevitably raises a subsidiary question. Do we examine the record de novo, or are we largely confined to an assessment of asserted errors? A review of the whole record de novo, we believe, is required for this case is quite typical of most appeals from the granting or denying of extraordinary writs.

Usually, appeals from rulings in certiorari, mandamus and prohibition give the reviewing court much of same view of the record as that of the trial court, and this appeal is no exception. Thus, although the conclusions of the learned trial judge are entitled to the most careful consideration, where the record both at trial and on appeal consists entirely of written and graphic material--documents, reports, maps, charts, official data and the like--and the trial court has not seen nor heard testimony requiring it to assess the credibility or competency of witnesses, and to weigh the evidence, nor reconcile conflicting evidence, then on appeal a court of review stands in the same position as the trial court in looking at the facts of the case and should review the record de novo. We should, therefore, give the record an independent review.

On this point, in Carlson v. City of Bellevue, 73 Wash.Dec.2d 40, 435 P.2d 957 (1968), we said:

The appeal, therefore, from the trial court's judgment brings before us, in the same form and content, the identical documents and records presented to the trial court. Under these circumstances, we are not bound by disputed findings of the trial court to the same extent and in the same manner as where the trial court's findings rest upon the oral testimony of witnesses. State ex rel. Pac. Fruit & Produce Co. v. Superior Court, 22 Wash.2d 327, 155 P.2d 1005 (1945); In re Black, 47 Wash.2d 42, 287 P.2d 96 (1955); Nygaard v. Department of Labor & Indus., 51 Wash.2d 659, 321 P.2d 257 (1958); Chalmers v. Department of Labor & Indus., 72 Wash.Dec.2d 591, 434 P.2d 720 (1967). We are entitled to make our own examination of the records thus presented and determine the merits of the contentions going to the issue of arbitrary, capricious, and unreasonable legislative action.

Accord: Bishop v. Town of Houghton, 69 Wash.2d 786, 420 P.2d 368 (1966).

A de novo look at this record, we think, shows not only that the board of county commissioners rezoned the aluminum company's optioned property without affording the fair and dispassionate hearing contemplated by the zoning statutes, but that they Spot zoned the area for the particular benefit of a particular applicant and against the public interest and that, as a spot zoning, this in itself was unreasonable, arbitrary, capricious and, therefore, illegal.

PHASE I--PRELIMINARY ZONING STUDIES

Skagit County's resolve to zone Guemes for residential and recreational uses came about through long, careful and detailed studies officially made under law. In contrast to the abrupt rezoning in issue, they were painstakingly thorough and deliberate. Initiating officially what undoubtedly had been preceded by informal studies, the Board of County Commissioners for Skagit County, July 24, 1961, in resolution No. 3678, established a planning department under RCW 36.70, and created a planning commission of nine members as a component of that department. The resolution directed that the planning commission 'shall conduct such hearings as are required' under the statutes, and make findings of fact and conclusions therefrom for transmittal to the department of planning which, in turn, should refer the same to the county commissioners with appropriate comments and recommendations. Section 5 of the resolution created the office of director of planning to head the department.

A short time thereafter, the planning department engaged M. G. Poole & Associates, a firm of professional planners and consultants, to start the studies, surveys and work preliminary to the preparation of a comprehensive zoning scheme for Skagit County. Nearly 2 years later in May, 1963, M. G. Poole & Associates prepared and delivered to the county commissioners a 51-page report in booklet form entitled 'Regional Planning in Skagit County.' 1

This document, as will be seen, was professional in concept and scientific in execution. It officially laid the foundation for the zoning of Skagit County, supplying the basic information for the ultimate county-wide comprehensive plan, zoning ordinance and zoning maps. It furnished the facts without which no sensible zoning could be accomplished; it described the county as to topography--depicting its composition of mountains, lowlands, forests, marshes, rivers, lakes and bays. It reported that the county had 160 square miles of lowland and river land, with the rest of the county predominantly forested and mountainous. Regional Planning in Skagit County showed that only 15.8 per cent of the county's total land mass could be called livable and that 1,462 square miles would have to be classified as nonlivable.

Through various tables, the report showed that, in addition to the low river lands of some 160 square miles, other areas brought the total livable lands within the county up to 273 square miles. Concerning this 273 square miles of livable lands, the report said 10.1 square miles of it were then occupied for residential purposes, 3.6 square miles for industrial purposes, .63 square miles for commercial uses and 183.7 square miles were vacant. From these 183.7 square miles of vacant livable lands, along with those existing areas already in use but which were susceptible of increased density without crowding, would come the residential, recreational, agricultural, commercial and industrial districts for future growth. The report had for its stated purpose the 'objective to provide for the highest and best use of the land, in the public interest' and to 'conserve, in so far as is possible, our original natural environment' and 'to develop and to protect neighborhoods in existing and future residential areas' and To group together similar land uses and to prevent mixed land uses. (Italics ours.)

Maps, charts, tables and text of the regional report set forth policies, goals and methods to be used in a sound planning program. It gave...

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