*1
February 4,
41145.
En Banc.
[No.
1971.]
County
T.
J.
et
al.,
Respondents,
Chrobuck
Snohomish
et al., Appellants.*
*Reported in
Robert E. appellants. for
Hodge, Dahlgren respondents. Hillis, & judgment appeal of an from a C. J. This is Hamilton, Planning superior voiding action of the Com- court County of Sno- mission and the Board Commissioners County, Washington, amending comprehensive homish given plan rural and residential area from a heavy type classification. classification to industrial appeal may The to a resolution of the facts essential following summarized in the manner: Commencing Com- Atlantic Richfield 1956, defendant acquired pany, Richfield, referred as Atlantic hereafter embracing approximately 2,000 2,100 of land some acres vicinity frontage in the immediate lineal feet of beach Bay Puget Kayak The acre- Sound. Point on Port Susan County, approximately age 7 miles is in Snohomish situated miles north and Stanwood, some 15 south of the town of easterly city Port Susan Everett, west of —across Bay Camano Island. —of Planning property located within Stanwood County’s Comprehensive zon- Plan for Area of Snohomish plan Plan- ing. comprehensive text for the Stanwood designated Atlantic ning promulgated Area, surrounding rural and property area as and the Richfield implementing classi- ordinance residential, and agricultural type fifedit as' Rural Use, a residential County Zoning zone as established in the Snohomish Ordi- nance. bordering in 1964,
Since areas waterfront Bay on Port Susan to the north and immediate south property Atlantic have, available, Richfield as access beсame developed prime as sites, residential and recreational has the east shore Likewise, of Camano Island. Lakes lying, respectively, Howard, Goodwin, Shoecraft, and Ki perimeter to the north and east of the inland of Atlantic property experienced Richfield’s have residen- waterfront growth, increasing tial transition from summer cottages permanent residences. The remainder of this portion Planning sparsely of the Stanwood Area is rather although population settled, with the increased indus- expansion vicinity city greater trial of Everett residential utilization is foreseeable. to the Atlantic Access Richfield at all times concerned consisted one *3 secondary paved county running generally road north and graveled south, Road, known as Warm Beach and a running along road, Road, Fire Trail and east west boundary property. southern of the publicly In mid-1967, it Atlantic Richfield announced proposed refinery operate on its construct and an oil property vicinity Kayak There- immediate Point. of September, requested after, Atlantic Richfield Snohomish County comprehensive plan permit re- to amend the a pertinent portion property rural of its from its heavy designation residential classification to industrial proposed application to enable the installation. The was duly County Planning Depart- referred to the Snohomish public hearing ment for and review recommendation and County Planning before Snоhomish Commission was to commence November 1967. scheduled hearing, At the which commenced as scheduled through 1, 1967, on November 30 and extended December varying proximity plaintiffs, situated in owners refinery, proposed to be utilized for an oil to the area by appeared opposition represented and counsel requested comprehensive plan. Atlantic amendment proponent Richfield, represented amendment, as of the likewise was hearing by At all counsel. the outset of respective parties counsel for the interested were advised chairman of commission that cross- any during hearing testifying examination witnesses permitted. would be hearing study opened with the introduction proposal County conducted Plan- the Snohomish
ning Department depart- and the recommendation of that application ment that Atlantic This Richfield’s denied. predicated upon department’s recommendation was be- topographically lief that the involved area unsuited heavy industry proposed for that the location of refinery expan- portent oil site, with the of future incompatible existing sion, was with the and future resi- surrounding dential and recreational attributes of the area. including Atlantic evidence, Richfield then introduced testimony vice-president Strador, Mr. L. At- F. describing lantic Richfield, the nature and characteristics refinery dockage the oil installation well as the controls which utilized to minimize would be impact, pollution spillаge. visual noise, odor, water and oil vein, Atlantic Richfield indicated an immediate need only including for facilities, 660 acres for the main strip Kayak frontage a narrow off Point beach to afford dockage incoming outgoing tankers. oil Further upon supply evidence bore the sources of water elec- energy trical to, would be looked additional employment opportunities, local fire services, control im- proved advantages access, and tax which could be derived *4 proposed as a of the result installation. Counsel for Atlantic company Richfield stated that if the could not the utilize proposed Kayak go Point site it would have elsewhere County refinery. placing than Snohomish its present Plaintiffs were then their contentions allowed by they evidence, and reechoed the concerns County Planning Department survey, em- Snohomish and phasized existing expanding the residential and recrea- usage frontage, Bay
ti'onal of Port the tidal beach Susan fishery Bay pos- of and the characteristics Port Susan spillage dumpage sible effects oil the adverse bay. into effluent the January plan-
Following hearing 1968, 9, and on the the grant ning announced its decision to Atlantic commission plan, comprehensive application Richfield’s to amend January findings of 15, 1968, and on forwarded its fact County recommendation to the Board of Commissioners February County. 1968, turn, 5, on Snohomish The board by adopted findings resolution and recommendatiоn comprehensive planning commission and amended the plan accordingly. February 1968, 1, on March
Thereafter and 29th and pursuant petition site to a to rezone the day planning on the filed Atlantic Richfield first hearings comprehensive plan amend- commission on the planning con- 30, commission ment, 1967, November Again, public hearing petition on the to rezone. ducted proponent, plaintiffs, opponents, Richfield, and Atlantic as presented, represented some counsel and testimony essentially same refinements, additions and hearing, subject previous to the same as at the and evidence again, And, to cross-examination. Sno- limitation as against Department County Planning recommended homish petition. granting May 1968, rendered commission On petition, granting Richfield’s as amended decision Atlantic hearing, from the rezone 635 acres of its at heavy designation classification, industrial Use Rural contingent upon validity acceptance and continued county agreement and Atlantic between the a concomitant concerning use and environ- the exclusive Richfield upon refinery purposes, of the site control mental perimeter of the site around the of 245 acres plan- zone. The use as buffer and recreational to a forest findings of and recommendations ning fact commission’s on commissioners to the board forwarded were May upon 10, 1968, based the execu- 27, 1968,and June *5 agree- “specific enforceability” tion and the сoncomitant of plan- adopted ment, board the recommendation ning indicated. commission and rezoned the seeking plaintiffs
On June initiated this action 24, 1968, judicial by way comprehensive review, certiorari, of the of plan plain- proceedings. In essence amendment and rezone change tiffs in- contended that a in the area conditions volved the action taken had not been which would warrant plan rezoning established, that deter- amendment and arbitrary spot zoning minations amounted to and were they process denied due unreasonable, and that had been planning law before the commission and the board county commissioners. superior voiding comprehensive plan court, rezoning, plaintiffs
amendment and had determined process proceedings not been accorded due of law county before the commission and the board and, further, commissioners spot zoning. that the constituted predicated upon These determinations were Skagit County, court’s decision Smith v. appeal, challenge 715, 453 On P.2d 832 defendants applicability of Smith to facts of this case. reaching However, before con- the substantive issues cerning zoning process, necessary dispose of a it procedural interjected by hearing matter defendants. At the superior before court, to dismiss the defendants moved upon plaintiffs’ petition writ of certiorari issued for review pertained proceedings relating insofar as it to the comprehensive plan. amendment This motion was assigning superior denied. In error to this action proceedings court, defendants contend that the to amend plan comprehensive separate proceed- the ings are distinct and provisions plaintiffs’ under the 36.70,1 of RCW timely, separate intervening failure to seek a review proceedings proceedings of the amendment finalizes those challenge following subsequent and forecloses a thereto County carrying procedures has, 1In on its Snohomish appropriate action, provisions elected to come under of RCW 36.70 than rather RCW 35.63. rezoning proceedings. argument, de of this furtherance 15-day point (e)(1), fixing I-57 time fendants ROA appel petitions extraordinary seeking limit for writs judicial proceedings, 36.32.330, late review of and RCW 20-day imposing appeals time limit for from decisions conceding commissioners, and, board while *6 superior apply cited and not rule statute do to court review zoning proceedings, ex contend limits of. time pressed provide yardstick applying for the doctrine therein of laches.
Although respect provisions 36.70, its with RCW plan adoption comprehensive to the or amendment of a (RCW 36.70.320-.450) adoption or amendment and .800) (RCW zoning official and 36.70.550-.650, controls appear contemplate proceedings separate with would respect plan implementing comprehensive and the purport and of the controls, we believe intent initiatory regard primarily in statute is directed stages planning an and and to situations where adopted zoning (rezoning) not an control amendment to necessarily dependent upon the amendment of an estab provision comprehensive plan. There is no lished separate proceedings compels an where statute which comprehensive plan existing im and an amendment to rezoning interdependent, plementing no and there is prohibits pro provision of the combination two ceedings. commencing Richfield’s case, Atlantic the instant refinery pro- oil of its announcement mid-1967 comprehensive plan September
posal, application for a its rezoning petition 30th, on and its for November amendment, comprehensive plan hearing day amendment on the rezoning goal aim the ultimate was the commenced, and ordinance. proceedings. same both involved was plan- hearings presented before the at both
The evidence many ning practically identical, as were commission was The two issues, and contentions involved. factors evidentially factually,. proceedings as well thus were property-wise, very interde- interwoven, their pendence rezoning genetically together, for bound proceed plan not Once the could without the amendment. comprehensive determination had been reached to amend plan impractical improvident it would have been step give to take the next to Atlantic consideratiоn pending petition implementing Richfield’s for the rezone. proceeding closely And, fact, aas matter of the rezone did plan proceeding, follow the amendment for the gave public hearing commission notice convened petition days after the com- upon plan missioners acted amendment.
Under these circumstances it
unreason
would be
piecemeal, duplicative approach
require
able and a
plaintiffs
judicial
comprehensive plan
seek
review
proceedings,
unsuccessful,
amendment
if
and,
be thereafter
again
judicial
subsequent
entitled
seek
review of the
proceedings.
rezone
Neither do we conceive that defend
unduly prejudiced
damaged by
ants were
the absence of
*7
judicial
intervening
plan
review
amendment
proceedings,
they
for
too could have been confronted with
delay
expense implicit multiple litigation.
the added
and
in
prejudice
damage,
Absent such
and
doctrine of laches
urged by
King
apply.
defendants does not
here
Pierce
County,
324,
Wn.2d
We conclude that the in court did not err ing portion defendants’ motion to dismiss a of the issues by raised the writ of certiorari. challenge now,
We turn, to the defendants’ directed to superior plaintiffs court’s determination that had not process planning been accorded due of law before the commission. principal giving superior rise circumstances to the regard
court’s in this conclusion these: prior hearings planning Sometime to the before the planning commission, the chairman of the commission and county chairman board of commissioners made trip Angeles, purpose California, a to Los for the of in- specting refinery Upon an Atlantic Richfield there located. Angeles, they by representatives met
arrival Los. including Richfield, Strador, of Atlantic L. F. vice- Mr. president of Atlantic Richfield and of its chief witnesses one subsequent hearings, accompanied aon at the who them provided facilities, ac- hotel tour site big league attended a meals, commodations and some trip game expense of the baseball with them. The county by although Richfield, sometime borne Atlantic transportation Atlantic Richfield for the later reimbursed Following hearings before the com- return, costs. their the chairman of the board of commissioners menced, support pro- publicly Richfield’s announced his Atlantic posal refinery Kayak matter locate a Point. When the at trip by plaintiffs at the hear- of this was raised counsel planning ings, commission refused the chairman of the concerning deposi- permit any However, discussion it. his an exhibit in these tion was taken later and entered as proceedings. attorney reputable respected
Mr. A. Bell, Lewis practicing Everett, com- was a member during period He, when Atlantic Rich- in 1950 mission. Kayak acquiring on Point, around field was negotiations Richfield carried on with Atlantic one occasion concerning property belonging one his clients represented in a lien Atlantic Richfield another occasion acquisition proceeding it of foreclosure incident During piece property. of these course different acquainted relationships, Mr. L. F. Bell Mr. became acquaintanceship continued on a social basis Strador, which fishing implemented excursions, one several and was fall of 1967. the summer of occurred proposal announced its construct Atlantic Richfield when *8 queried property, Mr. Mr. Strador on its an oil representation concerning legal for Atlantic Richfield Bell reclassifying during procedures the in- for the Bell Strador he time Mr. informed Mr. volved, at which planning and recommended the commission on the was Meagher, pres- Joseph Atlantic Richfield’s Mr. retention as a member of thereafter continued Mr. Bell ent counsel. planning comprehensive participated the commission, in the plan change hearing emanating and in the decision there- from. January, planning 1968, after de- the commission had findings concerning
livered its recommendations comprehensive plan change county commissioners but county before the had rendered their deci- commissioners respect plaintiffs sought public hearing thereto, sion with concerning foregoing before the commissioners request circumstances but their was refused. resigned planning
At time, about this Mr. from Bell attorney Jones, commission and Mr. Edward for the town Regional Library and a Stanwood trustee the Sno-Isl appointed District, was succeed him. Prior to. the com- prehensive plan change hearing, signed Mr. Jones had newspaper support advertisement the Stanwood proposed refinery during Atlantic Richfield’s the course hearing planning appeared of the before the commission favoring refinery, emphasized a witness he at time the benefits that would flow the Stanwood area and the library refinery project approved. if district Plain- objections sitting tiffs’ to Mr. Jones as a member planning during subsequent hearings, commission rezone plan- Jones, Mr. then, were denied. sat as a member of the ning during public hearings commission on the participated issue, and to some extent in executive sessions planning disqualified commission, but himself from taking part commission’s decision and concerning recommendations rezone. upon impact foregoing
Based the cumulative cir- superior plan- cumstances, court determined that the ning hearings appearance lacked the fair- commission’s required Skagit County, ness Smith v. (1969). Thus,
453 P.2d trial court concluded plaintiffs deprived process due of law.
We affirm the determination and conclusion of su- perior court. doing, premise
In so we start com prehensive planning zoning proposes imposes limi- *9 unhampered private upon as of
tations use the free and public regulations property,' well as and when such amendment, modification enacted, once the indiscriminate degree stability of or alteration thereof tends to disturb that continuity usagе affected land- and in the of land to which orderly occupation, en- in owners are entitled to look the by joyment, development properties. Perforce, and of their society, imposition very the initial nature our subsequent adopted or the modification restrictions regulations compels highest public confidence in the bringing governmental processes action. Cir- about such arising of such or in the course cumstances occurrences by processes appearance, to undermine zoning power, which, their tend dissipate and confidence the exercise of they might scru- be, must be innocent otherwise however sought the view that the evil tinized with care and with only in the elimination of actual to be remedied lies not prejudice, improper also favoritism, influence or but bias, very curbing by existence, which, of conditions their misinterpretation, suspicion, generate and tend to create partiality, impropriety, pall conflict of interest or cast a they prejudgment proceedings to relate. over the county plan- RCW and 36.70.040authorizes establishes ning it commission such as here and denominates involved planning as the conducts such tribunal which hearings may provisions required of RCW under other be provides through for the 36.70. 36.70.120 RCW 36.70.070 appointment, well as tenure, and removal members as organization commission. In connection with implementation comprehensive plan, adoption of a subsequent by regulatory controls, amеnd- thereof comprehensive plan regulations, or the ment of either the require .410, .580, .600 36.70.380, .400, RCW planning hearing, commission and notice, after before the along entry findings of fact with recommendations adoptive before or amenda- reasons the commission county tory may board of commis- taken 'action procedures changes provisions relate to sioners. Other changes by the board of com- or the initiation planning com- missioners recommendations of the legislative authority mission vest final- with the board. descriptive may Whatever characterization be other wise attached to role or function of advisory, zoning procedures, e.g., commission recommen datory, investigatory, legislative, it administrative *10 statutory manifest under the it is scheme of 36.70that RCW public agency, pursuant a com statute, established to state posed appointive distinguished public of from —as and elective— principal duty statutory officers,a of which to conduct public hearings specified planning in matters, and findings disputed enter of fact—often on the basis of facts— assigned and make recommendations with reasons thereto. Certainly, fact-finding hearing in its role tribunal, as and planning nearly the commission’s function more than not partakes quasi-judicial administrative, nature of an proceeding, implicit process in the re which is basic due quirement hearing fact-finding process the that and must impartial. fair be and planning the
.'Likewise,
of
commission,
members
the
as
public
imрressed
duty
conducting
officers
the
of
impartial fact-finding
signifi-
hearing upon
fair and
issues
cantly affecting
property rights
com-
individual
as well as
munity
practicable,
interests, must, so far as
consideration
being given
they
judicial
to the fact that
officers,
not
open
objective, impartial
entangling
minded,
be
and free of
influences or the taint thereof. State ex rel. Beam v. Ful-
(1969). They
wiler,
76 Wn.2d
It is ing that, axiomatic whenever law a hear- any precedent power to sort as a condition proceed, in hearing, hearing only fair it means a fair appearance substance, but fair well. case, of, nor do we instant we find no evidence self-serving
impute any, dishonest, or motives dishonorable planning part any or conduct on the members conducting entering hearing their commission findings of we hold fact and recommendations. Neither do respective relationships and actions, individual expressed planning commis- of the chairman views any sion, Bell, Mr. breach Mr. Jones constitute standing fatally necessarily alone, which, trust would hearing fact-finding proceeding. Neverthe- infect the less, we, court, as was the trial are driven the conclusion unfortunate circumstances hereto- combination impact inescapably thereof fore outlined and cumulative partiality prejudg- improper influence, cast aura of creating thereby erecting proceedings ment over the Skagit appearance of condemned in Smith v. unfairness County, supra. that under
Furthermore, we 'are inclined view com- case, circumstances of this the denial respective opportunity mission of the counsel for *11 parties expert and called to cross-examine witnesses hearing parties testifying added on behalf of the at the inhering proceedings. appearance in the unfairness speaking, ordinary Generally re hearings commission cross- before may expressing persons be their examination views anything appropriate to the fact- or contribute of value hearing finding process. however, as Where, here, adversary proponents proportions, distinctly and sumes by expert opponents represented counsel, 'are witnesses disputed complex, factors, and revolv called, technical and refinery processes, pollu ing air as oil such matters about vegetation impact, levels, and tion, visual water noise dockage spillage shipping operations, contamination, and oil fishery preservation, are in and tidal currents control, pertinent objec appear particularly to an volved, it would permit testimony presented to factual evaluation tive degree. Otherwise, it is in a rеasonable cross-examination fact-finding significance possible matters vital may glossed tribunal in over, obscured or omitted presentation subjects expert recital-like of technical and opinion. phase
On this conclude, the case we as we did Smith Skagit County, supra, by stating, page at 743: hearings by In this case, the called for the statute as an precondition enacting zoning changes essential to the wanting apparent were so fairness as to vitiate legislation emerging from them. superior The court, addition to its determination public hearings appearance involved lacked the fair- ness, proposed also concluded that refinery heavy site to a industrial and classification limitation thereof to the exclusive use of Atlantic Richfield refinery purposes spot zoning amounted to as that con- cept Skagit County, supra. is defined in Smith v.
Again, agree we with the trial court. portion Planning principally of the Stanwood Area rezoning appears maps affected on the introduced embracing to be an area Lakes Martha and Howard on the north, Lakes Crabapple east, Goodwin and Ki to the Lakes Bay Shoecraft south, shore of Port Susan composed the west. This affected area of at least 12 approximately sections of land, or 7,680 acres. From this acreage the rezone acres, carve out 635 zone heavy industry, it agreement, it, devote concomitant exclusively operatеd by to an oil site to be Atlantic despite County Richfield, Planning this, the Snohomish Department’s study changing which indicated that condi- parts County primarily tions in other of Snohomish marked prime the area involved aas residential and recreational original comprehensive plan district, consistent with the principal change land use classification. of conditions in *12 upon affected, actual area which the action predicated, was proposal was Atlantic Richfield’s to build refinery upon property. Among an primary oil its factors weighed general public consideration of the welfare, safety proposed project health and as related potential produce county, tax it revenue would for the any and Atlantic other site Richfield’s refusal to consider County. in Snohomish prompted County
These circumstances the Snohomish Planning Department study and state recommenda- concerning tion rezone: outstanding Company ex- is an Atlantic-Richfield large ample company of a record with established fully recognize appre- community responsibility. We attempt in a ciate their sincere to utilize their community. Yet the manner that will be an asset to the wrong place. fact remains that the site is principal regarding just every accepted It violates about industry. appropriate heavy It would be location outstanding area in the midst of an residential located adequate possibly road or rail and could without have access a water and resources. detrimental effect on land importantly, Perhaps it an indus- most would establish eventually precedent eliminate trial use land which would Bay Stilliguamish as Susan River delta in- Port valuable . all . . recreational for our citizens. resources right granting only site this The alternative one right industrially denying develop to other to similarly ously while area, be seri- circumstanced land in the cannot equity lack of of the obvious considered because giving special or it is com- consideration, as involved monly zoning. spot termed, planning department’s agree remarks,
We
with the
analogous
point
situation,
out that in a somewhat
and would
supra,
Skagit County,
at 743:
we stated in Smith v.
gain designed
private
Spot zoning
or benefit
to favor
ais
group
particular
or
a
individual
Rhyne,
community See C.
a whole.
welfare
spot
Municipal
§
vice of a
32-3,
Law
at 825
discriminatory
granting effect of
zone is its inevitable
group
and to the detriment
of owners
to one or
benefit
community
adequate
neighbors or the
without
of their
justification.
public advantage
v. Town
or
Thomas
(1962). Zoning
428,
873 Zoning Appeals Cy., Eckes v. Board Baltimore 209 Md. 121 432, A.2d 249 superior concluding court did err in that the re- zoning procedures spot zoning. amountеd to disposition principal or view our issues necessary case, we do not find it to reach the additional parties. contentions of the judgment superior court is affirmed. JJ.,
Finley, Rosellini, Hale, McGovern, Stafford, concur. (concurring) majority’s J. resolution Finley, —The upon propositions:
this case require- is based first, two (or appearance” ment of thereof) “fairness lack estab- by Skagit County, lished Smith v. P.2d (1969); additionally, upon and, the determination that county zoning disputed ordinance herein amounted to spot zoning. agree majority’s disposition I with the of this appeal upon signed the aforementioned I bases, and have majority opinion. particular agreement
I am in with comments of the majority opinion pages regarding appearance at 893-94 of fairness doctrine. However, some additional brief com- appearance ment on of fairness doctrine or standard appropriate. Rationally seems to me evaluated, this standard legislative perhaps, aligned subjec- conduct is, more objective analysis tive, rather than and evaluation. Never- my opinion, theless, in there is much to be said for the application possibly “subjective” of what could be termed a judicial zoning standard review actions local legislative bodies.
Unquestionably, today’s modern has become a perhaps pastoral fact of earlier, modem life. In more or concepts times, rural nuisance or common law probably likely yet legal nuisance were the most — limited — adaptable planning. theories available land-use But, day concepts later of modern mandated modern undergone rapid expansive develop- necessities have process supplement mental in order or overcome the inadequacies theory. of common law population, growing
The increase concentration or variety an uses urbanization, infinite modern land precipitated have need for modern and insistent social zoning, planning, zoning. i.e., effective land-use Modern vitally important therefore, has consideration become ownership probably relative to the and use of land and will *14 increasingly course, Inherent in of is, become so. this importance rights of the nature of individual sensitive enjoyment affecting involved decisions the use and land.
Considering and the broad frame reference broad this large percentage impact zoning on the of such a lives population as suburban, of our as well rural— —urban zoning appearance relative to becomes of of fairness judgment, paramount importance. my no less than In process highest of due must be demanded of local standards implementa- legislative in the formulation and the bodies making such determina- tion of determinations. justice only justice done; words, must tion, other seen to be done. must be majority’s I resolution of
For these reasons
concur in the
appearance fairness
this case and its adherence to
supra.
Skagit County,
in Smith v.
standard announced
(dissenting)
of statements in
J.
the basis:
—On
Neill,
(1969),
Skagit County,
715,
832
v.
453 P.2d
Smith
majority
of this court have overridden
the trial court and
appointed
duly
findings
elected and
of the
conclusions
responsibility
control of land
officials vested with
doing,
County.
today’s majority has
In so
use
Snohomish
precedent2
employed
overthrow
local
inconclusive
special
some months of
decision, reached after
hearings
accorded
ex-
deliberations, which
with the
comprehensive zoning plan.
original county
pectations of the
Skagit County,
opinion
My disagreement and the facts based on both the law is my points I of difference of this case. can summarize appearances (1) not a Reliance unfounded follows: judicial (2) proceedings proper The basis of decision. test or the rules more
not unfair under either the Smith (3) majority recently has failed set court. forth (4) agreement. to take account of the concomitant not constitute amendment ordinance does “spot zoning.” Is Appearances Not
(1) Reliance on Unfounded Proper Basis Judicial Decision majority gainsay general I do not has focus that highly charged any аspect If taken. there is subject “zoning” capable effective obfuscated judicial that is legal traditionally action, it is in the area of the questions process. of due It that our attention is far better legal center on such traditional than that we embroil issues *15 super-zoning commission, in those ourselves, as some kind of policy are for we and administrative determinations equipped.
My objection requirement general of, and is not to the proceedings, judicial on, the fairness of the concentration emphasis appearances. sub- on At a time when but to the bearing legal upon use control considerations land stantive development, emphasis seems in tumultuous such are fairly cope with, difficult issues raised. evade, rather than subject very renders such Moreover, the nature legal expertise requires questionable. emphasis It no misleading, danger appearances that are often that know techniques image- severely aggravated modern of is making. that elevation of is further hazard There legal of term of “appearance to the status of unfairness” unexplained, ephemeral may a cloak for to serve as come art I For these reasons believe that em- grounds of decision. practice. dangerous appearances phasis is a veiled on emphasis appearances accept if I on Even were to in I contained not be in accord with the Smith, would majority’s submit, It I less and, rеsult. would be valid stating suspicious to read that circum- dubious Smith as yielding appearance of can be stances a definite unfairness presumption due sufficient to the usual counterbalance proper zoning place a on the enactments 'and burden agency proceedings fair show proposi- nothing I fact.3 find in Smith which stands for the there tion that a decision nullified wherever will be give proceedings are circumstances which could tend to though appearance unfairness, the realities even today’s admittedly adopting proposition, otherwise. majority apply expands it does not Smith so much as unsupported vague to hold that tendencies that case toward merely worthy appearances emphasis they are are not — judicial dispositive. premised deci- that, the court has With entirely having reality than the on matters no more sion in Plato’s cave. shadows “appearance approach” applied an- here,
As inserts totally subjective body The other standard into law. making good premise, one, if there basic valid mandatory, public appearances the need for confidence is appearance government procedures. is of fairness eyes Here, there is no evidence beholder. proceedings appeared unfair to the that these the record distinguished from the contestants themselves. regard respondent’s only in this is statement assertion Gonzaga (1970), Note, а commentator L. Rev. where 3See on the Smith case observes: any “appearance approach” Apart positive features, most from upon assuredly certain inherent weaknesses. Built a foundation has keyed general superficial, impressions, terminology, and external any approach questionable has merit at all as a it whether hearings. determining safeguarding fairness of means *16 appearances very over-emphasis dependence Clearly, on will fostering very destroy. likely in the the court seeks to On result evil equal proportions emphasis hand, other combined with of the when approach prove appearance “substance,” could the valuable tool helpful upholding in aid fairness. and a Skagit County, (1969).) (Smith P.2d people oppose rezone feel “[Cjertainly the who very hearing.” perhaps get they not a fair Such did many, if unsuccessful contest- most, of not human reaction any adjudication. history of evidence of Absent in the ants only gleaned “appearances” impact, from public can things interpretation judge’s personal of how would each thought public as if all members look to legal, subjective personal, not a is a he did. That standard. Proceedings Either Unfair Under The Were Not
(2) Recently or the More Set Test Rules Smith Forth This Court majority’s summary picture created The depict For the sake facts does not the entire scene. completeness, necessary it is to observe: refinery might locate a
The notion that Atlantic Richfield suddenly area not arise in mid-1967. the Stanwood did contemplated very possibility for some 10 This had been governing groups, years planning local various protection original the school and fire districts. The such as plan permanently comprehensive of 1964 aside did set Kayak Point area—the site here issue—for residential comprehensive plan development. opposite. Quite the provided possibility, expressly anticipated, site, decide to establish at this Richfield would language: following every advantage to the town of Stanwood It would be surrounding attempt develop area to and at- and the possible. Although industry tract to this location as soon portion northern entire Stanwood fairly easy employment access to the cen- area will have upon King County completion ters of Everett and the always freeway, distance to these centers will new present industry located at Stanwood be considerable. inadequate large extent seasonal in nature and is is to a to attract population support de- which should surrounding velop in the areas. industry Although to Stanwood is the attraction attempt growth, it that an to its is recommended
essential be made discriminatory industry type as to what to be *17 proximity of the residential Because of the is attracted. industry areas, it recommended that and business attracted be is compatible possible with the clean and аs surrounding uses. Figure time that 2 in the noted at this
It should be Appendix Richfield land at does not indicate the owned opinion Kayak as a future industrial site. It is Point very inadequate for that land be of the staff this would refinery. types industry a other than most fairly on the The itself is small and is bordered site by fairly steep topographic break. Access to the east site only by trucks or boat. Access for trucks would be (Stanwood- since Marine Drive is not the most desirable Road) fairly fairly crooked, contains some Warm Beach through many steep grades, passes are areas which and essentially it reaches residential character before Highway 99. refinery and when decides establish If Richfield comprehensive plan be will have to amended
here industrial area. Until that time the entire show this designated it is felt site as residential since should use the best for the area from the that this would be standpoint compatibility practicability.
(Italics mine.) plan favorably original comprehensive antici-
Thus, pated if to locate amendment when and Richfield decided original refinery property. provisions on this These comprehensive plan acquisition of land in the antedated investiga- any inquiry many area current owners and refinery might tion that a be located would have revealed Kayak Point. anticipated re- use of site for a was also this given zoning area under the in.the classification flected question comprehensive plan. (original) The area in That classi- “rural use” rаther than “residential.” was zoned County, questioned here. In fication is not Snohomish agri- usage property primary “rural zoned use” is actual However, cultural, recreational residential. not limit “rural use” to these does
classification County provision of the Snohomish Code The relevant uses. (18.64.010)states: Zone is purpose the Rural Use and function portions of the in those controls minimum of allow county detri- largely in character without rural safety, general affecting health,
mentally general affecting adversely ob- 'and without welfare plan. comprehensive It is an- jective policies of the ticipated rural character area loses its as an change zones other one of the area shall such provided for in this Ordinance. plan comprehensive express
Thus, terms of both *18 property for called particular of this classification permanence. change, rather than industry dispute atmos- bent on
This is not a between pollution 'and pheric, aquatic on one hand and esthetic Rather, community hand. on the other the citizens governing honest faced with authorities were the local property opinion among local owners differences of sincere opposing are and rezone amendment Parties residents. those largely users, while residents and recreational summer community change principally citizens favoring local long anticipated re- representatives a had who and their majority Among finery the latter аre the at this site. located super- nearby living area, the Dake Goodwin of those Mayor schools, the of Stanwood intendent of the Stanwood issue, from News. the editor Stanwood viewpoint, Danielson, proponent’s indicated Mr. was News. the local Stanwood editor of done of what is be that essence It to me seems area is to or not the Stanwood whether is to decide here be community, a relegated of a bedroom to the status payroll tax that community and the benefits of a bereft industry dollar of a multimillion location come with im some of the area It true that is its borders. within surrounding in mediately has zoned as been Stanwood practical practice, sense this same dustry, area in a but Stillaguamish Valley along floor entire through year agriculture the defeat last zoned restriction. This means proposed flood control aof development money used in the can now be federal no going obviously, few industries are and, area of settle flooding, locality subject periodic if in so in a dustry settle somewhere else in our area, is to come in the near future to our it must district.[4] bought years, Now, for the last ten since Richfield ever present thought problem site, had this licked we we granted in some measure. All of us took it for that the refinery development only would be matter time in coming. fact, As a matter of editor of the local news- paper, I never heard one comment about word adverse proposed industry just the ago. new until or three months two County Planning
Even when the Snohomish Com- public hearing held on mission our town comprehensive plan for the Stanwood area March it was understood Richfield site changed could cided the time had come to industrial use Richfield de- be whenever develop refinery. exception properties, With the this area has waterfront experienced significant development. not residential land for a mile or more around the Richfield is quite essentially question The site in vacant wilderness. hilly, testimony was that would Opponents objected visible from on the residences beach. hearings pollution at the to a lack of controls of written they obligations noise, and for contract covenant called excluding part, other industries from the site and Richfield’s creating a land between Richfield’s site and the other buffer *19 objections end, In in the area. each of these by reclassifying and met 200 of Richfield’s demands were conditioning by the rezone on acres as a buffer zone and agreement. a concomitant charged respon- appears that the officials with the
It thus administering zoning regula- sibility legislating of and engaging thoughtless in a nullification of tions were contrary justifiable plan comprehensive and wishes citizenry expectations in order to accommodate the giant. polluting Rather, of industrial unfettered whims suggested during proceedings only location these 4The alternative Q” planning department. Q” suggested by the “Tract con a “Tract prеsently under water —it does not exist. There are of tidelands sists develop fact, plans in the foreseeable this area future. to fill and no court, filling development of this such a current decision under Gallagher, 306, prohibited. may Wn.2d 462 Wilbour P.2d See original comprehensive plan (1) ex- the facts are that pressly provides precisely for its. amendment own this (2) agencies contingency; local had, various for some 10 years, development planning; (3) counted on this in their by original were, area of landowners the clear terms comprehensive plan, expected on notice of the amendment probable (4) precise of location at this site; amendatory proceedings all were accord with statu- tory requirements proponents opponents alike speaking desirability change; their minds as of this (5) complaints opponents all substantive were by amendatory arrangements. alleviated the final regarding planning A further word need be said the three qualifications commission members interest, whose bias majority opinion. to in alluded Weber, Mr. chairman, commission did ac- company county the chairman the board of commissioners they inspected operational California, where Atlantic refinery. trip paid Richfield by The travel costs of this were county nearly October 2 months before the first hearings opponents any these and before the made issue of this matter. There is neither evidence nor assertion that reap any personal gain pecuniary Mr. Weber stood to loss, or proceedings. otherwise, from the outcome of these Mr. upon Weber made no announcement his return of any support opposition proposal; for or to the Richfield statement chairman of the board com- missioners cannot be transferred to Mr. Weber. The first indication in the record Mr. Weber’s conclusion as to proposal, Richfield that shown his recorded vote hearings completed. gives ample after the The record opponents trip reason that the to believe knew of this well comprehensive plan hearings advance November trip Nevertheless, 29th and December 1st. the matter opponents injected was not mentioned until counsel for the presentation, the matter after the close of 'his at the end of *20 day hearings. the last attorney planning Bell, the member of
Mr.
sole
the
com-
hearings,
plan
comprehensive
at the
mission
had not dealt
years.
over 10
There is neither
with Atlantic Richfield for
suggestion
any pecuniary
Bell
evidence nor
that Mr.
had
personal
except
in
outcome,
other
interest
the
that which
community.
he
in common
other citizens of the
held
years’
acquaintanceship of over 10'
duration
A mere social
disqualification.
ground
compel
not sufficient
his
See
was
Bishop Houghton,
proceeding, Smith, test. even under Smith opinion jority states: hearings public think, con- fairness, The test of we vague though interest, on matters ducted law person may in attendance be, a fair-minded whether
it given meetings issue, could, at con- on a all of the at say everyone good conscience had thereof, clusion fairness, should have been heard who, in all heard been body required legislative law to hold and that gave hearings to all reasonable faith credit matters weight they according presented, and force to receive. entitled in reason at 741. that this test was satisfied Smith conclusion (1) uncontradicted fact that the on either based accepted had commissioners
board *21 indepеndent commission’s recommendation without con- (2) though hearings or, that, the idea are sideration required any hearings 36.70, at the board level RCW actually comport requirements must held hearings. ap- commission Neither of these bases plies first, here. As to the the record without contra- shows independent diction that own, the board conclu- made public hearings required sions. As second, to the no promised none were or held the board com- Thus, missioners. the board’s actions here free of were faults to exist in found Smith. meetings
As to fairness’,
that,
it is clear
at the various
on
rezoning, “everyone
issues
amendment and
had been
who,
heard
all
fairness, should have been heard.” Also
see
Seattle,
Nelson
As this neither observes, also there is in case imputation any or con- evidence nor motive dishonorable part anyone part duct on the took in these delibera- who legislative terminology under the of Smith, tions. Even “the body required by gave hearings faith law to hold reasonable weight according presented, credit to all matters they The realities of force were entitled to receive.” *22 not case do demonstrate unfairness.
Subsequent Smith, court, to Chest- the decision 891 Snohomish, 741, nut Hill v. Wn.2d 458 P.2d Co. 76 (1969), presented an avowed was the situation where with opponent proposed zoning appointed to a ordinance was Attempts city planning him dis- commission. to have the ap- disqualified qualify no On himself or be were to avail. argued participation peal, appellants them that his denied grounds hearing. argument rejected on a fair was This planning not commission recommendations are bind- that decision) (which ing city makes the final on council city opponent coun- not a member and that the right participate in its or cast had deliberations cil and no 749.) (76 748, at determination. Wn.2d a vote county zoning responsibilities present are case, In the identically by allocated RCW 36.70.650: by planning report and recommendation by it,
agency, initiated control a whether by referred back to it board on a matter whether by report, on a matter initiated or whether for further the only advisory final determi- be board, shall rest with board. nation shall planning rec- dealing here, not commission We plan comprehensive amendment a ommendations, but with legisla- arid ultimate results ordinance—the by commissioners. board tive determinations significant. is distinction, me, Whatever it seems hearings, planning commission the characterization insufficiency not vitiate the commissioners’ there should any
885 legislative showing at that decision, least absent a independently Here, board’s conclusions were not reached. specific finding unquestioned board entered independent its conclusions commis- applica- sion In circumstances, recommendations. these supra, Snohomish, tion of Hill Chestnut Co. v. this case supported statutory grounds on identical unchal- lenged fact. supra,
In Chestnut Hill Co. v.
also reiter-
Snohomish,
we
pertaining
judicial
ated several well established rules
page
review of
at
746:
decisions,
Myhre
Spokane,
210,
State ex rel.
70
207,
v.
Wn.2d
(1967),
еxplained
422
790
P.2d
we
[zjoning
discretionary
police power
ais
exercise of
legislative authority.
Gibbs,
Lillions v.
47 Wn.2d
(1955).
except
629,
rezone, were the
of
discretion. Chestnut
supra;
Hill
v. Snohomish,
Co.
Lillions v. Gibbs, 47 Wn.2d
629,
Wn.
750,
When all facts and circumstances of case are con- sidered, ’are least debat- fairly the decisions of the board at to be de- able and should be The economic benefit upheld. from to locate at this site did rived decision industry alone factor Additional change.6 not stand as the justifying of this amend- very factors include the specific anticipation the reliance for plan, ment in the original comprehensive local agencies upon precise develop- some 10 years by a ment, agreement and the existence of concomitant which petition significance a to this court’s denial of 5No should be attached Appeals, of a of the Court of since the decision for review decision particular a from considerations not case derives whether or review opinion 50(b) (3). merits. CAROA other than our See factor, willingness that affirmative if industrial sole 6Even arbitrary legislative automatically a decision should not render judicious capricious. suggest distinction be the need a Realities industry merely add to cases in which the new would tween those industry pro existing the new would and those which economic base community where none existed before. economic base for the vide solid prospective instance, much seen contain a In the addition is latter community. stronger general relationship welfare “community” recognition is now in state It the term bears concepts “regional” planning flux, with those “local” debate “neighborhood” autonomy. appropriate for this court It would legislative clearly politi- inject debate, into itself so expand respondents attempt present case, no make cal in nature. County. “community” beyond of Snohomish the bounds the definition facility provide context, the Richfield would In that fact is that prevent previously area from be- economic base *24 nonexistent coming community.” circumstances, these even if Rich- “bedroom In only factor, willingness locate were favorable should field’s per zoning changes render the attendant void se. not
887 satisfied, objections opponents. Both the substantive Seattle, 862, sides were heard. See Nelson 64 395 v. Wn.2d (1964). P.2d 82 judicial support
The realities of this
nullifica-
case do
grounds
unfairness,
tion of these
amendments
recently
either
under the Smith test or under
rules more
supra.
stated in
Hill
To the
Snohomish,
Chestnut
Co. v.
contrary,
judicial
re-
adherence
our
rules of
established
requires
simply
view
affirmance of
actions. The facts
these
support
“appearances”
by majority.
do not
alluded to
Agreement
(3)
Concomitant
preceding pages
In the
I
referred
have
to the existence
agreement.
in this case of a
A
concomitant
discussion
agreement
appropriate
validity
questions
as
agreements, fairly
ably argued
effect of such
raised and
parties, present significant
these
issues in this case.
previous
cases we have,
extent,
to some
clarified
legality
agreements.
of concomitant
In Besselman v. Moses
(1955),
municipality
Lake, 46
279,
Wn.2d
The above was taken some any rezoning this court would find invalid ordinance with dispelled a condition attached. That notion was in the case Myhre Spokane, State ex rel. Wn.2d P.2d page stated at 216: We jurisdiction© There are which hold that all ordi agreements, are amended, nances which with concomitant *25 that, de are ciding We the before invalid. hold better rule-to be weigh city ordinance, to amend a the must public generally against the which to the benefits will flow adjacent 'any, property the to or detriment, if the owners public may to the An amendment result therefrom. agreement to a and a concomitant should ordinance only be if it cаn be that there was declared invalid shown clearly they change and no for a that valid reason arbitrary and rela unreasonable, and have no substantial general public safety, health, morals, wel tion to the 'and agreement city using if the for fare, or is the concomitant bargaining highest solely and sale bidder private speculators. the benefit Myhre The from in different circumstances were somewhat argued present city Besselman, those in In the Besselman.7 drainage property problem that the created owner had a filling problem in and un- existent, his lots. The was then any from antici- related to conditions that would arise the pated rezoning. property stance, In of the after that use drainage city’s attempt effect, to easement obtain, zoning power beyond instead, and was Was the limits properly matter of eminent domain. noted, as we more obligations property Myhre, of the owner all contract exclusively mitigation public related to needs which were property expected if re- from use of arise those needs was a matter within Fulfillment of zoned. by authority. city city’s proper bound The any way. agreement zoning power Under exercise its said circumstances, these we safety city requires meas- cost of such that the When bargaining away company, by it is not ures be borne determining power regulatory police but, rather,
its
the
necessity
persons
by
created the
who
be borne
cost should
expenditure
funds,
such
instead
for the
generally.
city
is
a determination within
Such
authority.
city’s legislative
con-
It follows that written
resulting
agreement
is not ultra vires.
therefrom
comitant
Comment, Rev. 197 Concomitant L. recognition con- express Synthesized, our these cases ex- may appendages agreements be valid comitant agree- validity zoning power. in such The indicia ercise of directly (1) performance called for include: ments may expected result public related to needs which (2) usage property rezoned. to be from the appropriate function is an Fulfillment of those needs (3) governmental body. miti- contracting will Performance resulting meeting gate needs those burden placing directly party use on the whose it more pur- agreement give (4) no involves will rise to them. *26 body governing ported relinquishment of its dis- cretionary zoning power. operates
Basically,
agreement
to neu-
a
concomitant
valid
prop-
proposed
any expected negative impact of the
tralize
agreement
erty usage.
distinguished
an
it
from
this,
is
prop-
from the
extract
collateral benefit
which seeks to
some
attempts
erty
agreements
to
latter
are void
owner. Such
Myhre
Spokane,
bargain legislation.
v.
sell or
supra;
ex rel.
State
Kappa Sigma,
Puget
Seattle,
v.
Alumni
Inc.
Sound
I it clear a concomitant think change “solely validity zoning for the benefit lend to a Myhre Spokane, supra, private speculators.” ex rel. State zoning upon Any special treatment must be based at 216. significant public some But benefit to be derived therefrom. simple directly responsive statement of the rule is not situations) to those numerous which there is a close against pro difficult balance a between the factors for and posed Certainly agreement, proper rezone. a concomitant allays objections the extent that it those who against proposed opposition use, is evidence that the arguments seriously considered and that the attendant zoning change arbitrary capricious. was not As a more genеral consideration, the main of concomitant benefit agreements response arises in situations where no proposal beyond competing use is correct It is doubt. when uses within area each that the have valid claims compromise through agree method available concomitant greatest ment is of situations, value. In such where neither complete proscription permission nor is de unrestricted agreement sirable, a concomitant the rational which allows: simply result should not be vitiated favoring the factors because though might use, substantial, not be per militating deemed sufficient se to those counterbalance against unrestricted use. present closely have, least,
In the case at cir- we balanced original comprehensive plan cumstances. change envisioned if and when Richfield decided to build original zoning site, *27 on this and the classification purpose. eventuality reflected this That occurred. Mean- according changed opponents, in while, to the the area has original zoning under the character the classification to extent that residential and recreational uses are of sufficient import require special uniformity protection. to Enforced contrary in area to of the current land uses the would be original comprehensive plan. spirit the and letter of the permit hand, other use of this site On the to unrestricted ignore existing for a would be to the realities of likely surrounding lands. In these circum- uses of the stances, the combination of a rezone enactment with valid agreement protect serves to the valid concomitant interests public proponents opponents and of the of the proposal. use actions, zoning taken my opinion here the
I reiterate subject any arbitrary, capricious, other nor to neither were my point present purposes, However, for attack. substantive rezoning industrial to of this if the that, is even con- standing effective questionable alone, an use would be agreement doubts. remove such could comitant requirements agreement the meets (cid:127)Here, the concomitant is performance validity called of directly The set forth above. public mitigation exclusively related proposed use. the arise from needs which will zon- agreement authority exercise to is not the bound way. ing power any is some substantial in There proposed only derived, to as a result benefit not following that conforms a course use also from but plan. original comprehensive Thus, blueprint forth set validity. agreement tests for established meets our performance by of its ob- Atlantic Richfield Furthermore, agreement ligations or minimize remove under this will targets use which were those effects objections. opponents’ evidence serves as added This actions, arbitrary zoning authority’s that the weight capricious, of factors the balance and also serves clearly rezone. in fаvor this conditioned “Spot Zoning”
(4) “appearance separate ground from its As a for decision majority approach,” amendment also holds adopted comprehensive plan ordinance zoning.” Again, “spot I pursuant dis- constituted thereto agree. majority adopts in a a declaration found plan-
department report evidence before ning There commissioners. commission and board weigh suggestion authorities did not no that the together department report the other evidence report, making and decisions..That recommendations their expounds by nonlegal agency, compiled an erroneous defi- private zoning” “spot limited bene- which is nition of *28 equally report declares its erroneous The then fit element. 892
legal judgment zoning “spot that action would be zoning.” “spot zoning” expresses legal
The term conclusion given zoning (1) that a enactment is inconsistent with the comprehensive plan (2) operates area, for the to favor particular group, (3) individual or does not benefit public community. Skagit welfare of the Smith v. County, supra; Anderson Seattle, 198, v. 64 Wn.2d 390 P.2d (1964); King County, Pierce 382 P.2d zoning It should be obvious that a enactment spot zoning simply does not amount to it because benefits particular group. If so, individual that were then vir- tually every comprehensive plan, zoning classification and permit nullity, zoning conditional use all would be since particular enactments must be assumed to benefit those in- meaningful, groups dividuals or who favored them. To be “spot zoning” analysis effectively recognize must all three elements. zoning question
Here, the enactments in were consistent language original comprehen- with the 'and intent of the plan. plan expressly anticipated earlier, sive As noted that amendment in the event that Atlantic Richfield decided locate a at Thus, this site. this record does not provide “spot zoning.” the first stated element of acknowledges majority board weighed public ad- commissioners various factors of vantage making regarding its decision these ac- Among indicating change tions. the factors would be general community benefit facts that provide base, use would create a needed industrial significant public long-time revenues, and fulfill the ex- pectations original comprehensive plan and the government. majority planning of local units of service pursue further, matter I think the con- does but inescapable that these enactments clusion is contrib- general community. significantly to the welfare uted such that the third stated element of Thus, the facts are zoning” present. “spot is not any meaningful “spot definition of the term, zon-
Under
*29
majority,
applied
ing”
present
case. As
in this
is not
by the
camouflages
fact,
a substitution
is,
the term
what
judgment
authorities.
for that of the
court of its own
judicial
proper
Farrell
review.
beyond the
This is
bounds
Bishop
(1969);
v.
P.2d 965
540, 452
Seattle,
v.
75 Wn.2d
McNaughton
(1966);
Houghton,
786, 420 P.2d
69 Wn.2d
(1966).8
Boeing,
659,
For
majority opinion. I
reverse.
would
J.
J., concurs
Neill,
Hunter,
yet
majority
We
to be seen.
decision
8The full ramifications
Washington
recently
11,
11,
State Constitution
that article
section
noted
legislative
equal
power
delegates
legislative
to localities
144,
County,
King,
Petstel,
power
Inc. v.
at the state level.
granted by
police powers
(1969).
that section