State v. Roberge

• Decision Date: 08 June 1927
• Docket Number: 20380.
• Citation: 144 Wash. 74,256 P. 781
• Parties: STATE ex rel. SEATTLE TITLE TRUST CO. v. ROBERGE, Superintendent of Buildings.
• Court: Washington Supreme Court

256 P. 781

144 Wash. 74

STATE ex rel. SEATTLE TITLE TRUST CO. v. ROBERGE, Superintendent of Buildings.

No. 20380.

Supreme Court of Washington, En Banc.

June 8, 1927

Appeal from Superior Court, King County; Kinne, Judge.

Mandamus by the State of Washington, on the relation of the Seattle Title Trust Company, as trustee under the last will and testament of Caroline Kline Galland, deceased, against George W. Roberge, as Superintendent of Buildings of the City of Seattle. From a judgment for respondent, relator appeals. Affirmed.

Parker Tolman, Holcomb, and Fullerton, JJ., dissenting.

Shank Belt & Fairbrook, of Seattle, for appellant.

Thomas L. Kennedy and Ray Dumett, both of Seattle, for respondent.

ASKREN J.

Caroline Galland, who died in Seattle about 20 years ago, left a will in which she devised an estate of approximately $1,000,000 in trust to the Seattle Trust & Title Company for certain purposes, one of which was the purchase of a site for the erection and maintenance of a home, to be known as the 'Caroline Kline Galland Home for Aged and Feeble Poor.' The will provided that those admitted to the home should be aged and feeble men and women, and the intent was that it should be managed in such a way as to bring to the inmates the greatest degree of contentment and happiness in their declining years. Pursuant to the will, the trustee purchased a tract of five acres on a ridge overlooking Lake Washington, and has maintained continuously since 1914 a home thereon conforming to the testator's desires. In 1926 the trustee decided to remove the frame building used as a home thereon, and erect in its place a modern brick building, having a capacity sufficient to care for twice as many inmates as the present home.

Application was made to the respondent for a building permit, which was refused upon the ground that in 1923 the city of Seattle had enacted a zoning ordinance, which prohibited the construction of a building for the intended purpose at the point desired. Action in mandamus was then begun to compel the issuance of the permit, and after hearing the trial court refused the writ, and this appeal followed.

The main contention made upon appeal does not question the validity of the ordinance, considered as a whole, but raises the point of whether it is arbitrary and unreasonable, as applied to the particular institution involved, and in that respect violates article 1, §§ 3, 7, 12, 16, and 23, of the state Constitution, and the Fifth and Fourteenth Amendments to the federal Constitution. The ordinance is to long to permit even a detailed résumé of its provisions, but in brief it may be said to divide the city of Seattle into six districts, known as 'use districts,' and provides to what use property may be put in each district. The uses are cumulative; i. e., each district includes as permissive all those uses which by ordinance are permitted in a higher use district, but not for those of a lower use. Thus, the property in district 6 may be used for all purposes provided therein, and also for those in the previous five districts. Likewise, property in district 5 can be used for all purposes mentioned therein and for those of Nos. 1, 2, 3, and 4, but not for those of No. 6.

The building sought to be erected is to take the place of the one now on the property, and is, by ordinance, within district No. 1, known as a 'first residence district.' The ordinance permits in that district single family dwellings public schools, private schools of a prescribed character churches, parks and playgrounds, art galleries, libraries, private conservatories, and railroad and shelter stations. District No. 2 permits, along with many others, the use of property for philanthropic institutions of the character of the one under discussion. It also provides in the ordinance that:

'(c) A philanthropic home for children or for old people shall be permitted in the first residence district when the written consent shall have been obtained of the owners of two-thirds of the property within 400 feet of the proposed building.'

The relator was unable to secure the consent of the property owners to erect this building in the first use district as required by the ordinance. The ordinance also had a provision exempting the property here in question from the ordinance under certain conditions, as follows:

'(b) Subject to the provisions of paragraphs (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.'

It will thus be seen that, as long as relator desires to continue to use the present building for present purposes, it may do so, but that, when a new building is to be erected, as is now desired, the ordinance prohibits it.

We have never been called upon to pass on the constitutionality of a zoning ordinance of this character before, and we need not enter into an involved discussion of it now, because relator has frankly conceded that the vast majority of courts have upheld zoning ordinances, and the recent decision of the United States Supreme Court in Village of Enclid, Ohio, v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, ^[1] has set at rest the question of the right of cities to enact such legislation. But relator finds objection to the ordinance because, as it contends, there is no justification for the placing of such an institution as the one in question in the second residence use district, and forbidding it to be erected in the first residence district.

The argument seems to be that an institution of this character is not such that it should be forbidden alongside single family residences in the first district. It is said that the character of the building to be erected is such as to beautify the grounds, and therefore it will not be an eyesore to the neighbors; that the institution is carefully managed, and that the inmates thereof so conduct themselves that they do not interfere with those round about them; that it will be the only one of its kind in the neighborhood, and that it will be located on a large tract of land, thereby separating the building from private dwellings by the width of the large side yards. In determining this question it must be remembered that the legislative authority cannot deal in myriads of details, and that its paramount duty is to determine the classification of uses. In this case that authority has designated the class with which we have here to deal as 'philanthropic institutions.' It is undenied that this home comes strictly under that class.

Now, must the ordinance go further, and divide and subdivide ad infinitum all the various degrees of the particular classification, until there arrives a twilight zone where no one can say whether a given use should come within one classification or another? Or must the courts, in construing the ordinance, do the same thing? For instance, applying it to the present case, must we say that, while it is perfectly proper that philanthropic institutions be placed in second use districts, yet, if the particular institution desires to erect a beautiful building, then it shall be taken from the second and placed in the first? Or, if the evidence shows that the inmates interfere none whatever with the occupants of adjoining residences, the class shall be changed? Or, if this be the only one in the district, the lessening of the value of adjoining property will be so slight that the class should be altered, or that, if it be erected on a wide expanse of ground, the contact with other persons will be small, and perforce this will be a reason for changing the classification? Or that all these things can combine in a given case, and thus upset the provisions of the ordinance?

Of course it is apparent that even the character of the buildings will change in time, and perhaps that which might be beautiful when erected will reach a point where it becomes, not only an eyesore, but a firetrap; that the inmates of to-day, who do not molest their neighbors, will be supplanted by others, who may not be so meticulous of the rights and feelings of others; that, if the present building may be erected, others of like character may also be erected all over the same district, and its character as a first residence district, primarily intended for single family dwellings, entirely destroyed; and the...