State ex rel. Miller v. Cain

• Decision Date: 27 March 1952
• Docket Number: No. 31856,31856
• Citation: 40 Wn.2d 216,242 P.2d 505
• Parties: STATE ex rel. MILLER, v. CAIN.
• Court: Washington Supreme Court

Page 216

40 Wn.2d 216

242 P.2d 505

STATE ex rel. MILLER, v. CAIN.

No. 31856.

Supreme Court of Washington, Department 2.

March 27, 1952.

Wettrick, Flood & O'Brien, Seattle, for appellant.

A. C. Van Soelen, J. Ambler Newton, Seattle, for respondent.

S. Harold Shefelman, Seattle, amicus curiae.

HILL, Justice.

Appellant own an improved lot, 50' by 100', at the southwest corner of Broadway and Roanoke streets in the city of Seattle. In 1923, at the time of the adoption of the zoning ordinance in that city, there was a gasoline service station on the lot, a wooden structure fifteen feet square with an attached canopy, also fifteen feet square, which covered two gasoline pumps. When the boundaries of the various use districts were established, appellant's lot was within a first residence district, and the gasoline service station became a permitted nonconforming building and use under the terms of the ordinance.

Appellant now seeks a building permit to 'Reconstruct Existing Service Station'; in her pleadings and in her briefs, she refers to essential 'repairs, remodeling and modernizing.' But what she plans is to erect a new building 43' 6" by 14' 6" which will contain, as added facilities, a grease rack and toilets. The construction for which she seeks a building permit is not in any sense the repair, remodeling, modernizing, or alteration of the existing structure. The present wooden building, covering 225 square feet, with a canopy covering another 225 square feet, would be razed and replaced by a steel reinforced structure covering 631 square feet. It was testified that 'about all' that could be salvaged from the old building for use in the new is the glass.

The permit was refused on the ground that its issuance would be in violation of the zoning ordinance. Appellant sought a writ of mandate to compel the superintendent of buildings to issue the permit. The superior court refused to issue the writ, and this appeal followed.

Zoning ordinances are constitutional in principle as a valid exercise of the police power. Village of Euclid v. Ambler Realty Co., 1926, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016.

The Seattle zoning ordinance permits, as do zoning ordinances generally, the continuance of certain but not all nonconforming uses existing at the time of the adoption of the ordinance. The reason for permitting their continuance is well stated in Austin v. Older, 1938, 283 Mich. 667, 278 N.W. 727, 730: 'An ordinance requiring an immediate cessation of a nonconforming use may be held to be unconstitutional because it brings about a deprivation of property rights out of proportion to the public benefit obtained'.

The pertinent portion of the section of the Seattle ordinance permitting nonconforming uses is § 9(b), which reads as follows:

'Subject to the provisions of Paragraph (a) and (f) of this section, the lawful use of a building or premises existing at the time of the adoption of this ordinance but not conforming to the provisions for the use district within which it is located may continue; provided that no structural alterations are made except such as the Superintendent of Buildings shall deem necessary for the safety of the building. The combined cost of all alterations and repairs in any ten year period shall not exceed the assessed valuation of the building at the time the last allowable permit is applied for.' (Italics ours.)

(Paragraph (a) provided for discontinuance of certain trades and industries in any except industrial areas after December 31, 1923 (a grace period of six months), and (f) provided that in first and second residence districts 'any nonconforming use of premises which is not in a building shall be discontinued within a period of one year' from the date the ordinance became effective.)

From the italicized words, it is evident that the spirit of the Seattle zoning ordinance, like that of zoning ordinances generally, is against the extension of nonconforming uses. By implication, the ordinance restricts changes in nonconforming buildings to repairs, and alterations necessary to structural safety. Such limitations on nonconforming uses and, indeed, much more stringent ones, are generally upheld. Thayer v. Board of Appeals of Hartford, 1931, 114 Conn. 15, 157 A. 273; Rehfeld v. San Francisco, 1933, 218 Cal. 83, 21 P.2d 419; DeVito v. Pearsall, 1935, 115 N.J.L. 323, 180 A. 202; Austin v. Older, supra; Colati v. Jirout, 1946, 186 Md. 652, 47 A.2d 613; Standard Oil Co. v. Tallahassee, 5 Cir., 1950, 183 F.2d 410.

The holdings are practically unanimous that a nonconforming building devoted to a nonconforming use cannot be replaced with a new and larger nonconforming building even though it would be devoted to the same use. DeVito v. Pearsall, supra; Austin v. Older, supra; Selligman v. Von Allmen Bros., 1944, 297 Ky. 121, 179 S.W.2d 207; Goodrich v. Selligman, 1944, 298 Ky. 863, 183 S.W.2d 625; Colati v. Jirout, supra.

Appellant relies on two Washington cases, Liberty Lbr. Co. v. Tacoma, 1927, 142 Wash. 377, 253 P. 122, and State ex rel. Modern Lbr. & Millwork Co. v. MacDuff, 1931, 161 Wash. 600, 297 P. 733. The matters actually decided in those cases seem to us to have little applicability to the present controversy. In the Liberty Lumber Co. case we were concerned with what constitutes the 'establishment' of a business within the meaning of a zoning ordinance requiring the consent of seventy-five per cent of the owners of the property within a radius of three hundred feet of the site, to the establishment of an industrial business in a residential district. In the Modern Lumber Co. case, at the time the lumber company applied for a building permit to replace its retail lumber yard building, which had been destroyed by fire, it had a right to a permit. When the building inspector refused to issue one, the lumber company brought an action for a writ of mandate to compel its issuance, which writ was returnable February 6, 1930. On February 3, 1930, the city council amended its zoning ordinance to prohibit lumber yards within retail districts. We quite properly held that the amendment prohibiting retail lumber yards in retail districts was palpably aimed at the lumber company and that it bore no substantial relation to the public health, safety, morals or general welfare.

Appellant vigorously and eloquently argues that she has a vested right to utilize her property as a gasoline service station. Although the city points out that it has taken no steps to interfere with the use of her property for that purpose, she contends that, in effect, it does prevent its use for that purpose by denying the building permit now requested, as competitive conditions, changed techniques in lubrication, etc., make it imperative that a new and more commodious structure be erected.

We are not in accord with appellant's contention that she is possessed for all time of the right to utilize her property as a gasoline service station, unless and until it can be classed as a nuisance. We cannot agree, as she seems to argue, that, since a service station was being operated on her lot when the zoning ordinance was adopted, it became an island surrounded by property subject to the exercise of the police power as exemplified in the zoning ordinance, but itself untouched thereby. The theory of the zoning ordinance is that her nonconforming use is in fact detrimental to some one or more of those public interests (health, safety, morals or welfare) which justify the invoking of the police power; but the nonconforming use was permitted to continue because its termination would constitute a hardship on her greater than the benefit the public would derive from termination of the use.

It was not and is not contemplated that preexisting nonconforming uses are to be perpetual. The following statements as to the ultimate purpose of zoning ordinances are frequently quoted:

'The ultimate purpose of zoning ordinances is to confine certain classes of buildings and uses to certain localities. The continued existence of those which are nonconforming is inconsistent with that object, and it is contemplated that conditions should be reduced to conformity as completely and as speedily as possible with due regard to the special interests of those concerned, and where suppression is not feasible without working substantial injustice, that there shall be accomplished 'the greatest possible amelioration of the offending use which justice to that use permits.' 'The accepted method of accomplishing this result is as follows: The nonconformity is in no case allowed to increase. It is permitted to continue until some change in the premises is contemplated by the owner, when, in so far as expedient, the authorities take advantage of this fact to compel a lessening or complete suppression of the nonconformity.' Williams, Law of City Planning and Zoning, pp. 202, 203; Lathrop v. Norwich, supra [111 Conn. 616, 623, 151 A. 183].' Thayer v. Board of Appeals of Hartford, supra, 114 Conn. at page 23, 157 A. at page 276.

'In enacting such ordinances, however, municipal authorities have had in mind the injustice and doubtful constitutionality of compelling the immediate removal of the objectionable buildings already in the district, and have usually made express provision that these nonconforming uses may be continued, without the right to enlarge or rebuild after destruction. The object of such provision is the gradual elimination of the nonconforming use'. Rehfeld v. San Francisco, supra. [218 Cal. 83, 21 P.2d 420.]

'The theory of zoning is to foster improvement by confining certain classes of buildings and uses to certain localities without imposing undue hardship upon the property owners. The present use of a nonconforming building may be continued but it cannot be increased nor can it be extended indefinitely if zoning is to accomplish anything. It is customary for zoning ordinances to provide that the life of...