State ex rel. Myhre v. City of Spokane, 38204

• Decision Date: 12 January 1967
• Docket Number: No. 38204,38204
• Citation: 70 Wn.2d 207,422 P.2d 790
• Court: Washington Supreme Court
• Parties: The STATE of Washington, on the Relation of William N. MYHRE, Robert Sater, and other residential property owners of the City of Spokane, Respondent, v. The CITY OF SPOKANE, a municipal corporation, Appellant, E. H. Walther, Herbert W. Walther, Paul Walther, and R. R. Biermann, doing business as Manito Crestville Company, James S. Black, doing business as James S. Black Company, Lee Dixon Giboney, Scott Holmes, and Virginia Holmes, Appellant-Intervenors.

Page 207

70 Wn.2d 207

422 P.2d 790

The STATE of Washington, on the Relation of William N.

MYHRE, Robert Sater, and other residential

property owners of the City of Spokane, Respondent, v. The CITY OF SPOKANE, a municipal corporation, Appellant,

E. H. Walther, Herbert W. Walther, Paul Walther, and R. R.

Biermann, doing business as Manito Crestville Company, James

S. Black, doing business as James S. Black Company, Lee

Dixon Giboney, Scott Holmes, and Virginia Holmes,

Appellant-Intervenors.

No. 38204.

Supreme Court of Washington, Department 1.

Jan. 12, 1967.

John P. Tracy, Jr., Corp. Counsel, T. David Gnagey, Spokane, for appellant.

Willard J. Sharpe, Clarence P. Smith, Spokane, for respondent.

OTT, Judge.

May 5, 1958, the City Council of Spokane passed ordinance No. C15434, designated as The Comprehensive Zoning Ordinance of the City of Spokane, which established zoning classifications of real property located within the city limits.

April 29, 1963, the city council, by ordinance No. C17494, amended the comprehensive zoning ordinance, reclassifying the following described property from "R1' One-Family Residence Zone' to "B2' Community Business Zone':

Lots 1 to 12, inclusive, the east 20 feet of Lots 13 and 14, and all of Lots 15 to 26, inclusive, Block 3; and vacated Thirtieth Avenue beginning at the southeast corner of Lot 26, thence west to point 30 feet east of southwest corner of Lot 14, thence south 10.06 feet, thence west 30 feet, thence south to northwest corner of Lot 13, Block 4, thence east to northeast corner of Lot 1, Block 4, thence north to point of beginning; and Lots 1 to 26, inclusive, Block 4; all in First Addition to Acre Park Addition.

At the time of the adoption of the amendatory ordinance, the city entered into an agreement with the Manito Crestville Company, a copartnership (hereinafter referred to as the company), whereby the owners of property in the reclassified area agreed to pay $75,000 toward the construction costs of certain streets which would result from the development of a shopping center in the rezoned business area.

June 28, 1963, William N. Myhre, Robert Sater, and other residential property owners in the city of Spokane, commenced an action against the city of Spokane, seeking a writ of certiorari to review the validity of amendatory ordinance No. C17494, contending that the ordinance was unconstitutional, null and void, and that its adoption constituted arbitrary and capricious conduct on the part of the city council of Spokane. The company and certain property owners were permitted to intervene in the action.

The superior court granted the writ. After the issues were joined, the cause was heard solely upon the record made before the Spokane City Plan Commission and the city council. No witnesses were called, and no evidence was introduced in the superior court that had not been considered by the city council prior to the adoption of the amendatory ordinance.

The court entered findings of fact and conclusions of law, and adjudicated the amendatory ordinance 'to be null and void and of no force and effect.'

The city of Spokane and the intervenors have appealed.

On appeal, the city of Spokane assigns error to the court's findings of fact, to its failure to enter appellant's proposed findings, and to its adjudication that the ordinance was void.

The intervenors have submitted a concise statement of points upon which they rely on appeal, which, Inter alia asserts that the court erroneously entered its findings of fact, conclusions of law, and judgment, and further erred in failing to enter judgment for the appellant city and the intervenors.

The appellant's and the intervenors' several assignments of error may be summarized as follows:

The trial court erred in entering its findings of fact and judgment (1) that the city council acted arbitrarily in enacting the questioned ordinance, and (2) that the concomitant agreement with the company constituted an ultra vires act by the city council and was void.

Did the city council properly exercise its police power in enacting the amendment to the zoning ordinance?

Zoning is a discretionary exercise of police power by a legislative authority. Lillions v. Gibbs, 47 Wash.2d 629, 289 P.2d 203 (1955). Courts will not review, except for manifest abuse, the exercise of legislative discretion. State ex rel. Smilanich v. McCollum, 62 Wash.2d 602, 384 P.2d 358 (1963). Manifest abuse of discretion involves arbitrary and capricious conduct. Such conduct is defined to be without consideration and in disregard of the facts. State ex rel. Lopez-Pacheco v. Jones, 66 Wash.2d 199, 401 P.2d 841 (1965); State ex rel. Cosmopolis Consol. School Dist. No. 99 v. Bruno, 61 Wash.2d 461, 378 P.2d 691 (1963). One who asserts that a public authority has abused its discretion and is guilty of arbitrary, capricious, and unreasoning conduct has the burden of proof. State ex rel. Lopez-Pacheco v. Jones, supra; State ex rel. Longview Fire Fighters Union, Local 828 v. City of Longview, 65 Wash.2d 568, 399 P.2d 1 (1965). If the validity of the legislative authority's classification for zoning purposes is fairly debatable, it will be sustained. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016 (1926).

In the instant case, the Spokane City Plan Commission, after several years of study, had recommended that the comprehensive zoning ordinance be amended. The plan commission's report to the city council, filed January 30, 1963, was as follows At its meeting November 7, 1962, the City Plan Commission approved the petition of Manito Crestville Company to rezone land immediately east of the existing business zone at 30th Avenue and Grand Boulevard subject to an agreement as to plans and development of the center. This decision was arrived at after very careful analysis of the need for more business zoned land on the south hill, the effect of such rezoning on existing and anticipated development, traffic considerations, the interests of property owners in the area, the public welfare and other related matters.

The Commission was of the opinion that improved shopping facilities are needed to serve the west half of the south hill and that it is in the best interest of the City and the south hill to provide land for such a facility by expanding the existing business area at 30th Avenue and Grand Boulevard.

The basis for this decision is that the amount of 'B2' Community Business land zoned on the south hill is not commensurate with the purchasing power and needs of the present nor the potential population within the Manito trade area as intended by the zoning ordinance and land use plan. Under this condition, the comprehensive development of the south hill is incomplete, the stability of property development is jeopardized, and unnecessary travel to obtain primary shoppers goods is forced on the residents of this section of the City. Where such need is not satisfied by a planned development, then ribbon business usually results which is one of the poorest and most inefficient forms of business development. This should and can be avoided in large measure by a well designed shopping center.

In recommending the Manito Crestville center, the Commission was deeply aware of the merits of alternate proposals and the advantages and disadvantages of the Manito Crestville center. Recognizing the need for more 'B2' business land for the west half of the south hill, the Commission felt expansion of the existing 'B2' zone at 30th and Grand is the better available solution to the problem. This center is centrally located in the trade area, does not conflict with the established zoning pattern, does not intrude into the Lincoln Heights trade area, and if allowed to develop as proposed, should do much to rejuvenate the existing business area and to provide a reasonable community business center for the west half of the south hill. The center has good arterial access. Much is being done to reasonably handle traffic problems by the shopping center constructing at its own expense street widenings required by the City Traffic Engineering Director.

The size of the center and business zone at 30th and Grand would not only be reasonable for the trade area but it is such as to not unduly draw from the central business district nor other established business areas.

The layout of the center has been carefully designed to obtain the best possible facility, maximum possible ease of traffic circulation, protection of adjoining residences, and coordination with the existing business at 30th and Grand.

This recommendation keeps faith with the residents, property owners and business men of the south hill and in our judgment is most consistent with and desirable for the comprehensive development of the south hill and the city.

At its meeting January 16, 1963 the Commission reviewed and accepted the petitioner's agreement and ordered the plans and agreement transferred to the City Council with its recommendation of rezoning. Therefore the Commission recommends that your Honorable Body amend the Zoning Ordinance No. C15434 to such extent as is necessary to change the classification of Lots 1 to 12 inclusive, the east 20 of Lots 13 and 14, and Lots 15 to 26 inclusive, Block 3; and vacated 30th Avenue beginning at the southeast corner of Lot 26, thence west to point 30 east of the southwest corner of Lot 14, thence south to 10.06 , thence west 30 , thence south to northwest corner of Lot 13, Block 4, thence east to northeast corner of Lot 1, Block 4, thence north to point of beginning; and Lots 1 to 26 inclusive, Block 4, all in First Addition to Acre Park Addition (City), from an 'R1' One-Family Residence Zone to a 'B2' Community Business Zone.

Because of the importance of this proposal to the comprehensive development of the south hill, the Commission respectfully requests that should there be any question on the proposal that at the...