Chrobuck v. Snohomish County

Hamilton, C. J.

This is an appeal from a judgment of the superior court voiding the action of the Planning Commission and the Board of County Commissioners of Sno-homish County, Washington, in amending a comprehensive plan and rezoning a given area from a rural and residential type classification to a heavy industrial classification.

The facts essential to a resolution of the appeal may be summarized in the following manner:

Commencing in 1956, defendant Atlantic Richfield Company, hereafter referred to as Atlantic Richfield, acquired approximately 2,100 acres of land embracing some 2,000 lineal feet of beach frontage in the immediate vicinity of Kayak Point on Port Susan Bay of Puget Sound. The acreage is situated in Snohomish County, approximately 7 miles south of the town of Stanwood, some 15 miles north and west of the city of Everett, and easterly — across Port Susan Bay — of Camano Island.

The property is located within the Stanwood Planning Area of Snohomish County’s Comprehensive Plan for zoning. The comprehensive plan text for the Stanwood Planning Area, promulgated in 1964, designated the Atlantic Richfield property and the surrounding area as rural and residential, and the implementing zoning ordinance classi-fifed it as' Rural Use, a residential and agricultural type of zone as established in the Snohomish County Zoning Ordinance.

Since the zoning in 1964, the waterfront areas bordering on Port Susan Bay to the north and immediate south of the Atlantic Richfield property have, as access became available, developed as prime residential and recreational sites, as has the east shore of Camano Island. Likewise, Lakes Howard, Goodwin, Shoecraft, and Ki lying, respectively, to the north and east of the inland perimeter of Atlantic Richfield’s property have experienced waterfront residential growth, with an increasing transition from summer cottages to permanent residences. The remainder of this portion of the Stanwood Planning Area is rather sparsely settled, although with the increased population and industrial expansion in the vicinity of the city of Everett greater residential utilization is foreseeable. Access to the Atlantic Richfield property at all times concerned consisted of one secondary paved county road running generally north and south, known as the Warm Beach Road, and a graveled road, Fire Trail Road, running east and west along the southern boundary of the property.

In mid-1967, Atlantic Richfield publicly announced it proposed to construct and operate an oil refinery on its property in the immediate vicinity of Kayak Point. Thereafter, in September, Atlantic Richfield requested Snohomish County to amend the comprehensive plan to permit a rezoning of the pertinent portion of its property from its rural residential classification to a heavy industrial designation to enable the proposed installation. The application was duly referred to the Snohomish County Planning Department for review and recommendation and a public hearing before the Snohomish County Planning Commission was scheduled to commence November 30, 1967.

At the public hearing, which commenced as scheduled on November 30 and extended through December 1, 1967, plaintiffs, property owners situated in varying proximity to the area proposed to be utilized for an oil refinery, were represented by counsel and appeared in opposition to the requested amendment of the comprehensive plan. Atlantic Richfield, as a proponent of the amendment, was likewise represented by counsel. At the outset of the hearing all counsel for the respective interested parties were advised by the chairman of the planning commission that cross-examination of any witnesses testifying during the hearing would not be permitted.

The hearing opened with the introduction of the study of the proposal conducted by the Snohomish County Planning Department and the recommendation of that department that Atlantic Richfield’s application be denied. This recommendation was predicated upon the department’s belief that the area involved was topographically unsuited for heavy industry and that the proposed location of an oil refinery on the site, with the portent of future expansion, was incompatible with the existing and future residential and recreational attributes of the surrounding area.

Atlantic Richfield then introduced evidence, including the testimony of Mr. L. F. Strador, vice-president of Atlantic Richfield, describing the nature and characteristics of the oil refinery and dockage installation proposed as well as the controls which would be utilized to minimize visual impact, noise, odor, water pollution and oil spillage. In this vein, Atlantic Richfield indicated an immediate need for only 660 acres for the main refinery facilities, including a narrow strip of beach frontage off Kayak Point to afford dockage for incoming and outgoing oil tankers. Further evidence bore upon the sources of water supply and electrical energy which would be looked to, and the additional local fire control services, employment opportunities, improved access, and tax advantages which could be derived as a result of the proposed installation. Counsel for Atlantic Richfield stated that if the company could not utilize the proposed Kayak Point site it would have to go elsewhere than Snohomish County in placing its refinery.

Plaintiffs were then allowed to present their contentions and evidence, by which they reechoed the concerns of the Snohomish County Planning Department survey, and emphasized the existing and expanding residential and recrea-ti'onal usage of Port Susan Bay beach frontage, the tidal and fishery characteristics of Port Susan Bay and the possible adverse effects of oil spillage and the dumpage of effluent into the bay.

Following the hearing and on January 9, 1968, the planning commission announced its decision to grant Atlantic Richfield’s application to amend the comprehensive plan, and on January 15, 1968, forwarded its findings of fact and recommendation to the Board of County Commissioners of Snohomish County. The board in turn, on February 5, 1968, by resolution adopted the findings and recommendation of the planning commission and amended the comprehensive plan accordingly.

Thereafter and on February 29th and March 1, 1968, pursuant to a petition to rezone the proposed refinery site filed by Atlantic Richfield on the first day of the planning commission hearings on the comprehensive plan amendment, November 30, 1967, the planning commission conducted a public hearing on the petition to rezone. Again, plaintiffs, as opponents, and Atlantic Richfield, as proponent, were represented by counsel and presented, with some additions and refinements, essentially the same testimony and evidence as at the previous hearing, subject to the same limitation as to cross-examination. And, again, the Sno-homish County Planning Department recommended against the granting of the petition.

On May 16, 1968, the planning commission rendered its decision granting Atlantic Richfield’s petition, as amended at the hearing, to rezone 635 acres of its property from the Rural Use designation to a heavy industrial classification, contingent upon the acceptance and continued validity of a concomitant agreement between the county and Atlantic Richfield concerning the exclusive use and the environmental control of the site for refinery purposes, and upon the rezoning of 245 acres around the perimeter of the site to a forest and recreational use as a buffer zone. The planning commission’s findings of fact and recommendations were forwarded to the board of county commissioners on May 27, 1968, and on June 10, 1968, based upon the execution and “specific enforceability” of the concomitant agreement, the board adopted the recommendation of the planning commission and rezoned the property as indicated.

On June 24, 1968, plaintiffs initiated this action seeking judicial review, by way of certiorari, of the comprehensive plan amendment and rezone proceedings. In essence plaintiffs contended that a change of conditions in the area involved which would warrant the action taken had not been established, that the plan amendment and rezoning determinations amounted to spot zoning and were arbitrary and unreasonable, and that they had been denied due process of law before the planning commission and the board of county commissioners.

The superior court, in voiding the comprehensive plan amendment and rezoning, determined that plaintiffs had not been accorded due process of law in the proceedings before the planning commission and the board of county commissioners and, further, that the rezoning constituted spot zoning. These determinations were predicated upon this court’s decision in Smith v. Skagit County, 75 Wn.2d 715, 453 P.2d 832 (1969). On appeal, defendants challenge the applicability of Smith to the facts of this case.

However, before reaching the substantive issues concerning the zoning process, it is necessary to dispose of a procedural matter interjected by defendants. At the hearing before the superior court, defendants moved to dismiss the writ of certiorari issued upon plaintiffs’ petition for review insofar as it pertained to the proceedings relating to the amendment of the comprehensive plan. This motion was denied. In assigning error to this action by the superior court, defendants contend that the proceedings to amend the comprehensive plan are distinct and separate proceedings under the provisions of RCW 36.70,¹ and plaintiffs’ failure to seek a timely, separate and intervening review of the amendment proceedings finalizes those proceedings and forecloses a challenge thereto following the subsequent

rezoning proceedings. In furtherance of this argument, defendants point to ROA I-57 (e)(1), fixing a 15-day time limit for petitions for extraordinary writs seeking appellate review of judicial proceedings, and RCW 36.32.330, imposing a 20-day time limit for appeals from decisions of a board of county commissioners, and, while conceding the cited rule and statute do not apply to superior court review of. zoning proceedings, contend that the time limits expressed therein provide a yardstick for applying the doctrine of laches.

Although RCW 36.70, by its provisions with respect to the adoption or amendment of a comprehensive plan (RCW 36.70.320-.450) and the adoption or amendment of official zoning controls (RCW 36.70.550-.650, and .800) would appear to contemplate separate proceedings with respect to the comprehensive plan and the implementing zoning controls, we believe the purport and intent of the statute in this regard is directed primarily to the initiatory stages of planning and zoning and to situations where an amendment to an adopted zoning control (rezoning) is not necessarily dependent upon the amendment of an established comprehensive plan. There is no provision in the statute which compels separate proceedings where an amendment to an existing comprehensive plan and an implementing rezoning are interdependent, and there is no provision which prohibits a combination of the two proceedings.

In the instant case, commencing with Atlantic Richfield’s public announcement in mid-1967 of its oil refinery proposal, its application in September for a comprehensive plan amendment, and its petition for rezoning on November 30th, the day the hearing on the comprehensive plan amendment commenced, the aim and the ultimate goal was the rezoning ordinance.

The property involved was the same in both proceedings. The evidence presented at both hearings before the planning commission was practically identical, as were many of the issues, factors and contentions involved. The two proceedings were thus evidentially and factually,. as well as property-wise, interwoven, and by their very interdependence were genetically bound together, for the rezoning could not proceed without the plan amendment. Once the determination had been reached to amend the comprehensive plan it would have been impractical and improvident not to take the next step and give consideration to Atlantic Richfield’s pending petition for the implementing rezone. And, as a matter of fact, the rezone proceeding did closely follow the plan amendment proceeding, for the planning commission gave notice and convened its public hearing on the petition for rezoning 24 days after the county commissioners acted upon the plan amendment.

Under these circumstances it would be unreasonable and a piecemeal, duplicative approach to require that plaintiffs seek judicial review of the comprehensive plan amendment proceedings, and, if unsuccessful, be thereafter entitled to again seek judicial review of the subsequent rezone proceedings. Neither do we conceive that defendants were unduly prejudiced or damaged by the absence of an intervening judicial review of the plan amendment proceedings, for they too could have been confronted with the added delay and expense implicit in multiple litigation. Absent such prejudice and damage, the doctrine of laches urged by defendants does not here apply. Pierce v. King County, 62 Wn.2d 324, 382 P.2d 628 (1963).

We conclude that the superior court did not err in denying defendants’ motion to dismiss a portion of the issues raised by the writ of certiorari.

We turn, now, to the defendants’ challenge directed to the superior court’s determination that plaintiffs had not been accorded due process of law before the planning commission.

The principal circumstances giving rise to the superior court’s conclusion in this regard are these:

Sometime prior to the hearings before the planning commission, the chairman of the planning commission and the chairman of the board of county commissioners made a trip to Los Angeles, California, for the purpose of inspecting an Atlantic Richfield refinery there located. Upon arrival in Los. Angeles, they were met by representatives of Atlantic Richfield, including Mr. L. F. Strador, a vice-president of Atlantic Richfield and one of its chief witnesses at the subsequent hearings, who accompanied them on a tour of the refinery site and facilities, provided hotel accommodations and some meals, and attended a big league baseball game with them. The expense of the trip was borne by Atlantic Richfield, although the county sometime later reimbursed Atlantic Richfield for the transportation costs. Following their return, and before the hearings commenced, the chairman of the board of county commissioners publicly announced his support of Atlantic Richfield’s proposal to locate a refinery at Kayak Point. When the matter of this trip was raised by counsel for plaintiffs at the hearings, the chairman of the planning commission refused to permit any discussion concerning it. However, his deposition was taken later and entered as an exhibit in these proceedings.

Mr. Lewis A. Bell, a respected and reputable attorney practicing in Everett, was a member of the planning commission. He, during the period in 1950 when Atlantic Rich-field was acquiring its property around Kayak Point, on one occasion carried on negotiations with Atlantic Richfield concerning property belonging to one of his clients and on another occasion represented Atlantic Richfield in a lien foreclosure proceeding incident to the acquisition by it of a different piece of property. During the course of these relationships, Mr. Bell became acquainted with Mr. L. F. Strador, which acquaintanceship continued on a social basis and was implemented by several fishing excursions, one of which occurred in the fall of 1967. In the summer of 1967, when Atlantic Richfield announced its proposal to construct an oil refinery on its property, Mr. Strador queried Mr. Bell concerning legal representation for Atlantic Richfield during the procedures for reclassifying the property involved, at which time Mr. Bell informed Mr. Strador he was on the planning commission and recommended the retention of Mr. Joseph Meagher, Atlantic Richfield’s present counsel. Mr. Bell thereafter continued as a member of the planning commission, participated in the comprehensive plan change hearing and in the decision emanating therefrom.

In January, 1968, after the planning commission had delivered its findings and recommendations concerning the comprehensive plan change to the county commissioners but before the county commissioners had rendered their decision with respect thereto, plaintiffs sought a public hearing before the county commissioners concerning the foregoing circumstances but their request was refused.

At about this time, Mr. Bell resigned from the planning commission and Mr. Edward Jones, attorney for the town of Stanwood and a trustee for the Sno-Isl Regional Library District, was appointed to succeed him. Prior to. the comprehensive plan change hearing, Mr. Jones had signed an advertisement in the Stanwood newspaper in support of Atlantic Richfield’s proposed refinery and during the course of the hearing before the planning commission appeared as a witness favoring the refinery, at which time he emphasized the benefits that would flow to the Stanwood area and the library district if the refinery project was approved. Plaintiffs’ objections to Mr. Jones sitting as a member of the planning commission during the subsequent rezone hearings, were denied. Mr. Jones, then, sat as a member of the planning commission during the public hearings on the rezoning issue, and participated to some extent in executive sessions of the planning commission, but disqualified himself from taking part in the planning commission’s decision and recommendations concerning the proposed rezone.

Based upon the cumulative impact of the foregoing circumstances, the superior court determined that the planning commission’s hearings lacked the appearance of fairness required by Smith v. Skagit County, 75 Wn.2d 715, 453 P.2d 832 (1969). Thus, the trial court concluded that plaintiffs were deprived of due process of law.

We affirm the determination and conclusion of the superior court.

In so doing, we start with the premise that comprehensive planning and zoning proposes and imposes limitations upon the free and unhampered use of private as well as public property,' and when such regulations are once enacted, the indiscriminate amendment, modification or alteration thereof tends to disturb that degree of stability and continuity in the usage of land to which affected landowners are entitled to look in the orderly occupation, enjoyment, and development of their properties. Perforce, by the very nature of our society, the initial imposition of zoning restrictions or the subsequent modification of adopted regulations compels the highest public confidence in the governmental processes bringing about such action. Circumstances or occurrences arising in the course of such processes which, by their appearance, tend to undermine and dissipate confidence in the exercise of the zoning power, however innocent they might otherwise be, must be scrutinized with care and with the view that the evil sought to be remedied lies not only in the elimination of actual bias, prejudice, improper influence or favoritism, but also in the curbing of conditions which, by their very existence, tend to create suspicion, generate misinterpretation, and cast a pall of partiality, impropriety, conflict of interest or prejudgment over the proceedings to which they relate.

RCW 36.70.040 authorizes and establishes the county planning commission such as here involved and denominates it as the tribunal which conducts such planning and zoning hearings as may be required under other provisions of RCW 36.70. RCW 36.70.070 through 36.70.120 provides for the appointment, tenure, and removal of members as well as the organization of the commission. In connection with the adoption of a comprehensive plan, the implementation thereof by regulatory controls, and the subsequent amendment of either the comprehensive plan or the regulations, RCW 36.70.380, .400, .410, .580, and .600 require a public hearing, after notice, before the planning commission and the entry of findings of fact along with recommendations and reasons by the commission before adoptive or amenda-tory 'action may be taken by the board of county commissioners. Other provisions relate to procedures for changes or the initiation of changes by the board of county commissioners in the recommendations of the planning commission and vest final- legislative authority with the board.

Whatever descriptive characterization may be otherwise attached to the role or function of the planning commission in zoning procedures, e.g., advisory, recommendatory, investigatory, administrative or legislative, it is manifest under the statutory scheme of RCW 36.70 that it is a public agency, established pursuant to state statute, composed of appointive — as distinguished from elective — public officers, a principal and statutory duty of which is to conduct public hearings in specified planning and zoning matters, enter findings of fact — often on the basis of disputed facts— and make recommendations with reasons assigned thereto. Certainly, in its role as a hearing and fact-finding tribunal, the planning commission’s function more nearly than not partakes of the nature of an administrative, quasi-judicial proceeding, implicit in which is the basic due process requirement that the hearing and fact-finding process must be fair and impartial.

.'Likewise, the members of the planning commission, as public officers impressed with the duty of conducting a fair and impartial fact-finding hearing upon issues significantly affecting individual property rights as well as community interests, must, so far as practicable, consideration being given to the fact that they are not judicial officers, be open minded, objective, impartial and free of entangling influences or the taint thereof. State ex rel. Beam v. Ful-wiler, 76 Wn.2d 313, 456 P.2d 322 (1969). They must be capable of hearing the weak voices as well as the strong. To permit otherwise would impair the requisite public confidence in the integrity of the planning commission and its hearing procedures.

It is the foregoing considerations that prompted us to state in Smith v. Skagit County, 75 Wn.2d 715, 739, 453 P.2d 832 (1969):

It is axiomatic that, whenever the law requires a hearing of any sort as a condition precedent to the power to proceed, it means a fair hearing, a hearing not only fair in substance, but fair in appearance as well.

In the instant case, we find no evidence of, nor do we impute any, dishonest, dishonorable or self-serving motives or conduct on the part of any members of the planning commission in conducting the hearing and entering their findings of fact and recommendations. Neither do we hold that the respective individual actions, relationships and expressed views of the chairman of the planning commission, Mr. Bell, or Mr. Jones constitute any breach of public trust which, standing alone, would necessarily and fatally infect the hearing and fact-finding proceeding. Nevertheless, we, as was the trial court, are driven to the conclusion that the unfortunate combination of circumstances heretofore outlined and the cumulative impact thereof inescapably cast an aura of improper influence, partiality and prejudgment over the proceedings thereby creating and erecting the appearance of unfairness condemned in Smith v. Skagit County, supra.

Furthermore, we 'are inclined to the view that under the circumstances of this case, the denial by the planning commission of the opportunity of respective counsel for the parties to cross-examine the expert witnesses called and testifying on behalf of the parties at the hearing added to the appearance of unfairness inhering in the proceedings.

Generally speaking, in the ordinary zoning or rezoning hearings before a planning commission the cross-examination of persons expressing their views may not be appropriate or contribute anything of value to the fact-finding process. Where, as here, however, the hearing assumes distinctly adversary proportions, the proponents and opponents 'are represented by counsel, expert witnesses are called, and complex, technical and disputed factors, revolving about such matters as oil refinery processes, air pollution, noise levels, visual impact, water and vegetation contamination, shipping and dockage operations, oil spillage control, tidal currents and fishery preservation, are involved, it would appear particularly pertinent to an objective factual evaluation of the testimony presented to permit cross-examination in a reasonable degree. Otherwise, it is possible that matters of vital significance to the fact-finding tribunal may be glossed over, obscured or omitted in a recital-like presentation of technical subjects and expert opinion.

On this phase of the case we conclude, as we did in Smith v. Skagit County, supra, by stating, at page 743:

In this case, the hearings called for by the statute as an essential precondition to the enacting of zoning changes were so wanting in apparent fairness as to vitiate the legislation emerging from them.

The superior court, in addition to its determination that the public hearings involved lacked the appearance of fairness, also concluded that the rezoning of the proposed refinery site to a heavy industrial classification and the limitation thereof to the exclusive use of Atlantic Richfield for refinery purposes amounted to spot zoning as that concept is defined in Smith v. Skagit County, supra.

Again, we agree with the trial court.

The portion of the Stanwood Planning Area principally affected by the rezoning appears on the maps introduced to be an area embracing Lakes Martha and Howard on the north, Lakes Goodwin and Ki to the east, Lakes Crabapple and Shoecraft to the south, and the shore of Port Susan Bay to the west. This affected area is composed of at least 12 sections of land, or approximately 7,680 acres. From this acreage the rezone proposed to carve out 635 acres, zone it heavy industry, and devote it, by concomitant agreement, exclusively to an oil refinery site to be operated by Atlantic Richfield, and this, despite the Snohomish County Planning Department’s study which indicated that changing conditions in other parts of Snohomish County primarily marked the area involved as a prime residential and recreational district, consistent with the original comprehensive plan and land use classification. The principal change of conditions in the actual area affected, upon which the rezoning action was predicated, was Atlantic Richfield’s proposal to build an oil refinery upon its property. Among the primary factors weighed in consideration of the general welfare, public health and safety as related to the proposed project was the potential tax revenue it would produce for the county, and Atlantic Richfield’s refusal to consider any other site in Snohomish County.

These circumstances prompted the Snohomish County Planning Department to state in its study and recommendation concerning the proposed rezone:

The Atlantic-Richfield Company is an outstanding example of a large company with an established record of community responsibility. We fully recognize and appreciate their sincere attempt to utilize their property in a manner that will be an asset to the community. Yet the fact remains that the refinery site is in the wrong place. It violates just about every accepted principal regarding the appropriate location of heavy industry. It would be located in the midst of an outstanding residential area without adequate road or rail access and could possibly have a detrimental effect on water and land resources.

Perhaps most importantly, it would establish an industrial land use precedent which would eventually eliminate Port Susan Bay and the Stilliguamish River delta as invaluable recreational resources for all our citizens. . . . The alternative of granting only this one site the right to develop industrially while denying this right to other similarly circumstanced land in the area, cannot be seriously considered because of the obvious lack of equity involved in giving special consideration, or as it is commonly termed, spot zoning.

We agree with the planning department’s remarks, and would point out that in a somewhat analogous situation, we stated in Smith v. Skagit County, supra, at 743:

Spot zoning is a zoning for private gain designed to favor or benefit a particular individual or group and not the welfare of the community as a whole. See C. Rhyne, Municipal Law § 32-3, at 825 (1957). The vice of a spot zone is its inevitable effect of granting a discriminatory benefit to one or a group of owners and to the detriment of their neighbors or the community without adequate public advantage or justification. Thomas v. Town of Bedford, 11 N.Y.2d 428, 184 N.E.2d 285 (1962). Zoning merely for the benefit of one or a few, or for the disadvantage of some and with no substantial relationship to the public health, safety, general welfare or morals, in conflict with either the comprehensive zoning plan or ordinance is arbitrary and capricious and unlawful. Eckes v. Board of Zoning Appeals of Baltimore Cy., 209 Md. 432, 121 A.2d 249 (1956).

The superior court did not err in concluding that the rezoning procedures amounted to spot zoning.

In view or our disposition of the principal issues in the case, we do not find it necessary to reach the additional contentions of the parties.

The judgment of the superior court is affirmed.

Finley, Rosellini, Hale, McGovern, and Stafford, JJ., concur.

1 In carrying on its zoning procedures Snohomish County has, by appropriate action, elected to come under the provisions of RCW 36.70 rather than RCW 35.63.