Wiggers v. Skagit County

• Decision Date: 26 April 1979
• Docket Number: No. 6341-I
• Citation: Wiggers v. Skagit County, 596 P.2d 1345, 23 Wn.App. 207 (Wash. App. 1979)
• Parties: Keith WIGGERS and Herbert Sargo, on behalf of themselves and on behalf of the Skagit River League, a voluntary association, Appellants, v. The COUNTY OF SKAGIT and Howard Miller, Jack Wylie and William Sullivan, the Commissioners thereof, Respondents, George Theodoratus and Ray Drake, Jr., on behalf of themselves and Valleys West, a limited partnership, Respondents.
• Court: Washington Court of Appeals

Page 207

23 Wn.App. 207

596 P.2d 1345

Keith WIGGERS and Herbert Sargo, on behalf of themselves and on behalf of the Skagit River League, a voluntary association, Appellants, v. The COUNTY OF SKAGIT and Howard Miller, Jack Wylie and William Sullivan, the Commissioners thereof, Respondents George Theodoratus and Ray Drake, Jr., on behalf of themselves and Valleys West, a limited partnership, Respondents.

No. 6341-I.

Court of Appeals of Washington, Division 1.

April 26, 1979.

Bell, Ingram & Rice, P.S.C., Lewis A. Bell, Everett, for appellants.

Preston, Thorgrimson, Ellis, Holman & Fletcher, Robert L. Gunter, Seattle, Patrick R. McMullen, Skagit County Prosecuting Atty., C. Thomas Moser, Chief Civil Deputy of Skagit County, Pros. Atty., Mount Vernon, for respondents.

SWANSON, Acting Chief Judge.

Keith Wiggers, Herbert Sargo and the Skagit River League (hereafter Wiggers and Sargo) appeal from a superior court judgment quashing a writ of certiorari which had been issued to review the action of the Skagit County commissioners in approving a planned unit residential development.

In quashing the writ of certiorari, the trial court entered the following findings of fact and conclusions of law:

1.

Intervenor defendants . . . on behalf of themselves and VALLEYS WEST, a limited partnership, filed an application for a Planned Unit Residential Development (PURD) with Skagit County on November 5, 1975.

2.

Thereafter, six public hearings were held before the Planning Commission, who recommended to the County Commissioners that they approve the PURD subject to certain conditions. That approval was granted by the Skagit County Commissioners, Defendants herein, on May 25, 1976.

3.

The project consists of approximately 220 acres located on the South side of the Skagit River, 2 miles West of Concrete. The project consists of some 20 divisions which include approximately 265 residential sites, 120 individually owned campsites, some 50 acres of open space and 6 acres devoted to related commercial and condominium developments.

4.

The property in question is not entirely contiguous but has three distinct portions which are connected by unimproved county road easements over state land . . . The intervening state land is subject to casual recreational uses.

5.

Counting each individual campsite as an individual dwelling unit like the other residential sites, the density of the development is 2.3 dwelling units per acre which is less than one-half of the maximum allowable. No density bonus was requested by Intervenor Defendants or approved by the County.

9.

Both the Interim Zoning Ordinance and the Comprehensive Plan for Skagit County provide for residential zoning in this area.

10.

The PURD Ordinance No. 4081 includes the following statement as its Declaration of Purpose: "The purpose of the P.U.R.D. classification is to provide for flexibility and diversification in development and to provide guidelines for developments consisting of a variety of uses which are not covered by other sections of this ordinance and/or other ordinances."

11.

The PURD Ordinance No. 4081 provides for: "A creative approach to the use of land and related physical development, offering a maximum choice in the types of environment and living units . . ." (Par. 6.01) and may be used for a variety of types of housing and accessory uses including commercial land uses. (Par. 6.02(3) and Par. 6.09) 12.

The basic intent of the legislative body of the county enacting the PURD Ordinance was to provide for flexibility and diversification in developments. By their approval of the project, the Defendants SKAGIT COUNTY COMMISSIONERS determined that the development was consistent with the legislative intent both as to its noncontiguous nature and as to the inclusion of individually owned campsites.

Based upon these findings, the trial court entered the following conclusions of law:

3.

The proper standard of review of the decision of the County Commissioners in this zoning controversy is that known as the "arbitrary and capricious" standard.

5.

The purpose of PURD is to ensure harmonious self-contained developments incorporating a variety of uses, types of environments and living units. That purpose is of greater consideration than a strict adherence and construction of the word "tract" contained in the ordinance.

6.

The action of the County Commissioners in approving the project was made after due deliberation with full regard to the facts of the case.

Wiggers and Sargo assign as error the entry of finding of fact No. 12, conclusion of law No. 5 and the court's conclusion that the writ of certiorari should be quashed. These assignments raise the issues of whether a planned unit residential development under Amendment No. 5162 to Skagit County Ordinance No. 4081 may be developed on parcels of land that are noncontiguous, and whether individually owned campsites are permitted.

In adopting zoning Amendment No. 5162, the Skagit County commissioners stated in the "declaration of purpose" that:

The purpose of the P.U.R.D. classification is to provide for flexibility and diversification in development and to provide guidelines for developments consisting of a variety of uses which are not covered by other sections of this ordinance and/or other ordinances.

In utilizing the P.U.R.D. concept, the developer will be required to provide far more consideration to planning, overall design, open space and recreation areas, engineering, architectural and landscape design, and other factors consistent with good land use development.

Section 6.02 of the ordinance states:

(1) The P.U.R.D. may be developed on A tract of land in single ownership, multiple ownership, or otherwise subject to supervisory lease management authority or ownership control as may be necessary to carry out the provisions of this section.

(2) The development shall consist of a harmonious selection of uses and groupings of buildings, service, parking areas, circulation and open spaces, planned and designed as an integrated unit in such a manner as to constitute a safe, efficient and convenient P.U.R.D. Emphasis will be on positive good design, harmony of the P.U.R.D. with the existing and proposed character of its surroundings, with emphasis and due consideration given to air, water and soil pollution, flood protection, aesthetics and conformance with the policies, goals, and objectives of the Comprehensive Plan.

(3) A P.U.R.D. may be located in any zone which permits residential uses on a gross minimum 10 acre parcel of land, or such smaller parcel of land which could not be efficiently or economically developed using normal subdividing procedures, but which could be utilized as identified in 6.01(1), (2), (3) above. Such development may consist of a variety of types of housing and accessory uses. P.U.R.D.'s consisting of a substantial number of dwelling units, may also include commercial land uses, subject to provisions as provided in 6.09 Commercial Land Use within a P.U.R.D.

(Italics ours.)

Wiggers and Sargo contend that under this ordinance, (1) a "tract of land" was intended to mean parcels of land which are contiguous, and (2) individually owned campsites are not permitted in a planned unit residential development. They argue that approving a planned unit residential development on the three noncontiguous parcels of land in this case and permitting campsites was contrary to the zoning ordinance. We disagree.

Zoning ordinances should be given a reasonable construction and application in order to serve their purpose and scope. State ex rel. Edmond Meany Hotel, Inc. v. Seattle, 66 Wash.2d 329, 402 P.2d 486 (1965). Zoning ordinances are to be construed as a whole and any unreasonable construction must be rejected. Bartz v. Board of Adjustment, 80 Wash.2d 209, 492 P.2d 1374 (1972).

(Z)oning ordinances should be liberally construed to accomplish their plain purpose and intent. At the same time the court bears in mind that they are in derogation of the common-law right to use property so as to realize its highest utility and should not be extended by implication to cases not clearly within the scope of the purpose and intent manifest in their language.

State ex rel. Standard Min. & Dev. Corp. v. Auburn, 82 Wash.2d 321, 326, 510 P.2d 647, 651 (1973). See Dando v. King County, 75 Wash.2d 598, 452 P.2d 955 (1969). The primary objective in interpreting a zoning ordinance is to ascertain the legislative intent. East v. King County, 22 Wash.App. 247, 589 P.2d 805 (1978). Undefined words in an ordinance will be given their plain and ordinary meaning, East v. King County, supra; State v. Work, 75 Wash.2d 204, 449 P.2d 806 [596 P.2d 1349] (1969), and singular terms used in a zoning ordinance include the plural unless the context in which the terms are used indicates to the contrary. 8 E. McQuillin, Law of Municipal Corporations § 25.71 (3d ed. rev. 1976).

In applying these aids to interpretation, we hold that under the unique circumstances of this case, the term "a tract of land," as used in section 6.02(1), is broad enough to include noncontiguous parcels of property. Although the term "tract," as used in deeds and tax statutes, often connotes contiguity, See e. g., RCW 84.04.130, Saulsberry v. Maddix, 125 F.2d 430 (6th Cir. 1942), the term is broadly defined in Webster's Third New Int'l Dictionary (1969) as "an area either large or small: as . . . (1): a region or stretch (as of land) that is (usually) indefinitely described or without precise boundaries . . ." See Normal v. Harter, 5 Ill.App.3d 363, 283 N.E.2d 44 (1972); Lakewood Homes Inc. v. Board of Adjustment, 23 Ohio Misc. 211, 258 N.E.2d 470 (1970), Aff'd in part, rev'd in part, 25 Ohio App.2d 125, 267 N.E.2d 595 (1971). In Oxley v. Linnton Plywood Ass'n, 205 Or. 78, 284 P.2d 766, 776 (1955), the court stated:

The usual significance of the word "tract", As applied to land, is contiguity of the parcels of property, but that is not always true. I...