Stegriy v. King County Bd. of Appeals

• Decision Date: 27 December 1984
• Docket Number: No. 12902-3-I,12902-3-I
• Citation: 693 P.2d 183,39 Wn.App. 346
• Parties: Michael and Betty STEGRIY, husband and wife, Appellants, v. KING COUNTY BOARD OF APPEALS, Respondent.
• Court: Washington Court of Appeals

Page 346

39 Wn.App. 346

693 P.2d 183

Michael and Betty STEGRIY, husband and wife, Appellants, v. KING COUNTY BOARD OF APPEALS, Respondent.

No. 12902-3-I.

Court of Appeals of Washington,

Division 1.

Dec. 27, 1984.

Neiman & Gillard, Stephen T. Araki, Redmond, for appellants.

Norman K. Maleng, King County Pros. Atty., Michael E. Thurston, Deputy Pros. Atty., Seattle, for respondent.

COLEMAN, Judge.

This is an appeal from an order of the King County Superior Court affirming a decision of the King County Board of Appeals in which the Board denied the Stegriys a license for a hobby kennel under KCC 11.04.060. ¹ The Stegriys contend that (1) the The Stegriys reside in a rural neighborhood in Carnation, Washington, on approximately 37,000 square feet of land. They own five dogs, three of which they keep as pets, and two for show. The dogs are confined in their yard, which is enclosed by cyclone fencing.

Board acted arbitrarily and capriciously in upholding the King County Animal Control Division's denial of the Stegriys' application for a hobby kennel license; (2) KCC 11.04.060 does not authorize the Animal Control Division to deny an application for a license; and (3) KCC 11.04.060 is in conflict with RCW 36.49.010 and is therefore unconstitutional.

On August 10, 1981, the Stegriys received a citation from the Animal Control License Section, Division of General Services of King County, ("Animal Control") for a barking problem. The record indicates that the citation was subsequently dismissed. As a result of the investigation, however, the Stegriys were advised by Animal Control that they needed a hobby kennel license to keep more than three pets on their property. They applied for the license, and the application was denied by Animal Control. The notice denying their application stated that Animal Control interpreted KCC 11.04.060(b)(4) to require that the department insure the compatibility of a hobby kennel with the surrounding development. The notice stated that Animal Control had

inspected your premises and the proposed hobby kennel operation in determining compliance with King County During the investigation it became very clear that the proposed hobby kennel could never exist compatibly with the surrounding development.

Code 11.04.060 ...

From this notice and order, the Stegriys appealed to the King County Board of Appeals. The Board conducted a public hearing and received testimony from a license inspector for Animal Control, several neighbors who opposed the hobby kennel license, one neighbor who was in favor of the license application, and the Stegriys. The Board upheld the denial of the license by a 4-to-1 vote, and entered a notice and order which stated in part:

I.

STATEMENT

This matter came on before the Board of Appeals for King County on the appeal of Michael & Betty Stegriy, who through investigation and careful consideration of the application, was denied. The investigation was based on infromation [sic ] received from residents in the area voicing their concern that the hobby kennel would not be fully compatible with the neighborhood due to excessive noise from the dogs (barking). Upon further investigation it became apparent to the Department that due to the incompatibility with the surrounding development, the application be denied pursuant to K.C.C. 11.04.060(B)(4).

II.

FINDINGS

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3. That the inspectors of the King County Animal Control Division of the General Services Department acted reasonably under the circumstances noted in this matter.

4. That after an investigation by the Department of Animal Control the application for Hobby Kennel License was denied due to incompatibility with the surrounding development pursuant to K.C.C. 11.04.060(B)(4).

The matter was appealed to the King County Superior Court pursuant to a writ of certiorari, and the superior court affirmed the decision of the Board. The superior court entered findings of fact and conclusions of law which

provided in part:

FINDINGS OF FACT

* * *

III.

Upon plaintiffs' application for a hobby kennel license the Animal Control Division (ACD) for King County conducted an investigation, which included a physical inspection of plaintiff[s'] property and neighborhood and receiving the comments of neighbors. As a result of the investigation and objections of neighbors the ACD concluded that the proposed hobby kennel was not compatible with the surrounding development.

* * *

CONCLUSIONS OF LAW

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II.

That the scope of review in this case is whether the decision was arbitrary and capricious or contrary to law. This standard does not allow the court to substitute its own judgment for that of the Board of Appeals. There is substantial evidence in the record to support the decision of the Board of Appeals, therefore the decision of the Board was not arbitrary or capricious neither was the decision contrary to law.

III.

The power to grant licenses contained in King County Ordinance 11.04 also contains the power to deny licenses.

* * *

V.

King County Code 11.04.060(b)(4) which regulates hobby kennel licenses is constitutional and does not conflict with state law.

This appeal followed. In assigning error to conclusion of law 2, the Stegriys contend that Animal Control did not consider the specific criteria listed in KCC 11.04.060(d) when it denied the Stegriys' application for the hobby kennel license. Therefore, they argue, Animal Control's determination was an abuse of discretion.

The scope of judicial review of actions of an administrative agency is narrow:

[T]he judiciary will only review the actions of an administrative agency to determine if its conclusions may be said to be, as a matter of law, arbitrary, capricious, or contrary to law.

Helland v. King Cy. Civil Serv. Comm'n, 84 Wash.2d 858, 862, 529 P.2d 1058 (1975) (quoting Reiger v. Seattle, 57 Wash.2d 651, 653, 359 P.2d 151 (1961)). The long-standing definition of arbitrary and capricious action is:

wilful [sic] and unreasoning action, in disregard of facts and circumstances. Action is not arbitrary and capricious when exercised honestly and upon due consideration of the facts and circumstances.

(Citations omitted.) Northern Pac. Transp. Co. v. State Utils. & Transp. Comm'n, 69 Wash.2d 472, 478, 418 P.2d 735 (1966). Furthermore,

[w]here there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.

DuPont-Ft. Lewis Sch. Dist. 7 v. Bruno, 79 Wash.2d 736, 739, 489 P.2d 171 (1971).

At the Board hearing, the representative of Animal Control testified that he understood the provisions of the ordinance to require that people in the area be happy with the proposed hobby kennel. He noted that the three complainants who testified at the hearing in opposition to issuance of the license were the same persons who lived on both sides of the Stegriys' property. The license inspector's description of the results of his investigation clearly revealed that the gravamen of the complaints was excessive noise. He indicated that while there had been some barking when he was on the premises, he personally had not been able to determine whether the barking was excessive. He remarked that there were numerous retired people in the area, and that those closest to the Stegriys would obviously be more affected by the hobby kennel than others would be.

One neighbor testified that the dogs did "bark a lot." For example, when he worked in his yard, the dogs barked at him. Another neighbor testified that he objected primarily to the noise, but that he also felt that a kennel was not compatible with a fenced recreation area. A third neighbor testified that gardening was her favorite hobby, and that she could not be in the yard without the dogs barking at her. She stated that when her grandchildren were playing in the yard, the dogs charged and barked at them from behind the cyclone fence. This neighbor testified that the barking occurred during the day and at night. She declared that her purpose in living in the country was to have serenity, and that five barking dogs did not provide a serene atmosphere. Thus, in her opinion, a kennel license was not compatible with the neighborhood.

Witnesses stated that when fishermen and others used a public access road near the Stegriys' property, the dogs barked at these visitors. The third witness indicated that the dogs barked at anybody they saw. Although there was testimony to the contrary, the above illustrations prevent us from concluding that the action of the Board was willful and unreasoning or that it was in disregard of the facts and circumstances. There was room for more than one opinion; indeed, the Board itself was divided in its vote. Thus, we cannot say that the majority's action was arbitrary or capricious.

We next address the Stegriys' contention that the action of Animal Control and the affirmance of that action by the Board were contrary to law. The essence of appellants' argument on this issue is that the ordinance in question does not empower Animal Control to deny a license under the facts and circumstances presented here. They argue that Animal Control was required to explore other remedial avenues such as "additional setback, fencing, screening, or soundproofing requirements ..." KCC 11.04.060(b)(4). They argue that Animal Control may not deny the license outright; instead, Animal Control must impose conditions on the license, and then, if the applicant does not satisfy the conditions, Animal Control may not issue the license. King County, however, argues that the power to deny the license application is necessarily implied in the grant of authority to the agency. Both parties cite the rule of Burlington N., Inc. v. Johnston, 89 Wash.2d 321, 326, 572 P.2d 1085 (1977), that an administrative agency has only those powers which are expressly granted to it by stat...