Lewis v. City of Medina

Farris, J.

On application for a writ of mandamus, the trial court reversed the City of Medina’s Board of Adjustment and required the City to issue a building permit to G. Harlan Lewis and Harry G. Lewis. The City appeals.

In 1972, G. Harlan Lewis (as executor of his mother’s estate) applied for a variance of the City of Medina’s lot size and setback requirements in order to secure a building permit to construct a residence on a lot in the estate which had less than the required 6,000-square-foot area.¹

The parcel was created in 1948 when it was divided and a larger, improved, adjoining parcel was sold. The Lewis parents owned the land which had been subdivided once prior to the 1948 division; only the parcel in question has been retained.

The father died intestate in 1948. “[T]o facilitate an easier probating of the estate,” the Lewis brothers “deeded over” all title and interest in the estate to their mother. When the larger parcel was sold in June of 1948 pursuant to a real estate contract, however, the brothers signed the contract and the subsequent (1952) fulfillment deed individually. Their mother signed individually and as executrix. During that period, G. Harlan Lewis held and exercised power of attorney for his mother.

Medina was incorporated in 1955 and thereafter developed zoning regulations which included the following requirements for the issuance of a variance:

[T]he Board shall not vary any of the rules, regulations, or provisions of the zoning ordinances unless it shall find, after public hearing, that all of the following conditions exist in each case of an application for a variance:

1. That the land and/or structure in question cannot be reasonably used, and cannot yield a reasonable return, if used only for the purposes permitted and . in accordance with other requirements in the land use district in which the land and/or structure is located;

2. That the plight of the owner is due to unique circumstances which are not the general condition of the neighborhood, and are not the result of the owner’s action;

3. That the use requested by the applicant, if established, will not be of a general classification differing from the essential use provisions of the land use district in which the land and/or structure is located.

(Italics ours.) City of Medina ordinance No. 159 (covering use of land) § 1-21.05.

The Lewises’ application for a variance was denied. The Board of Adjustment, although possessing the power to grant the variance “[wjhere unnecessary hardships and practical difficulties are created for the landowner in the application of . . . zoning ordinances,” City of Medina ordinance No. 159 § 1-21.05, denied it relying upon subpar-agraph 2, when it found as a fact:

The subdivision of the larger tract of land of which the subject property was a part was carried out by the applicant G. Harlan Lewis acting for himself and his mother, Melita G. Lewis, by sale under real estate contract dated June 30th, 1948 wherein one Marie C. Tenny was purchaser. A fulfillment deed in respect to such contract was recorded January 17th, 1952 and the applicant has had no interest in the property so transferred since said date.

Board of Adjustment supplementary finding of fact No. 3; and held:

Two requirements for any variance are that the hardship be unique to the applicant and also not the result of his own action. In this regard Mr. Harlan Lewis as executor, or he and his brother as heirs, stand in the position of their predecessors who subdivided the property leaving a corner lot of such awkward dimensions and less than 6,000 square feet in area. The applicant has failed to show when or by whom Tract G was subdivided.

Board of Adjustment decision No. 3.

The trial court found that:

The hardship that results from a denial of variance by the City of Medina . . . was not a hardship created or self-inflicted by the plaintiffs or their deceased mother while the zoning laws of Medina were in effect.

(Italics ours.) Finding of fact No. 9. The trial court then justified a judgment against the City on the ground that the hardship is sufficiently great and the threat to public health and safety is sufficiently slight to require the issuance of a variance.

This appeal questions the proper scope of review of a board of adjustment’s denial of a variance. The Supreme Court has decided that issue: the reviewing court must limit its inquiry to a determination of whether the board’s “conclusions may be said to be, as a matter of law, arbitrary, capricious, or contrary to law.” Reiger v. Seattle, 57 Wn.2d 651, 653, 359 P.2d 151 (1961); Helland v. King County Civil Serv. Comm’n, 84 Wn.2d 858, 529 P.2d 1058 (1975).

A finding

can be held to be “arbitrary or capricious” if there is no support for it in the record and it is therefore a “willful and unreasoning action, in disregard of facts and circumstances.” Northern Pac. Transp. Co. v. State Util. & Transp. Comm’n, 69 Wn.2d 472, 479, 418 P.2d 735 (1966).

Stempel v. Department of Water Resources, 82 Wn.2d 109, 114, 508 P.2d 166 (1973).

A conclusion is contrary to law when the application of valid factual findings results in a holding inconsistent with a proper construction of the governing law.

A board of adjustment is only permitted to grant a variance from a zoning ordinance within the guidelines set forth in that zoning ordinance. Thomson Methodist Church v. Zoning Board of Review, 99 R.I. 675, 210 A.2d 138, 141 (1965).

L.M. Pike & Son, Inc. v. Waterford, 130 Vt. 432, 434, 296 A.2d 262 (1972). See Reichard v. Zoning Bd. of Appeals, 8 Ill. App. 3d 374, 290 N.E.2d 349 (1972); Jacobs v. Philadelphia Zoning Bd. of Adjustment, 1 Pa. Commw. 197, 273 A.2d 746 (1971); cf. Cooper-George Co. v. Spokane, 3 Wn. App. 416, 475 P.2d 568 (1970), wherein we held that the Board’s disregard of its own statutory requirements justifies the conclusion that a denial of a variance is arbitrary and capricious.

Although a record of the Board of Adjustment’s hearing on the issue is not before us, there is no dispute between the parties or the findings of the court and the Board on the relevant factual points.

Whether the Board’s denial of the variance here is contrary to law turns upon the resolution of two issues: First, is the variance ordinance applicable to “authors” who subdivide the land prior to the enactment of the ordinance and, second, if it is, are the Lewis brothers legally responsible for the creation of the parcel by their “predecessor”? If the answer to these questions is yes, the Board and the trial court are foreclosed from granting the variance and the Board’s decision must be reinstated.

Generally, the retroactive application of an ordinance is disfavored in the law, see In re Estate of Fotheringham, 183 Wash. 579, 49 P.2d 480 (1935), and will not be presumed absent a clear expression of intent by the legislature. See Corak v. Department of Labor & Indus., 2 Wn. App. 792, 469 P.2d 957 (1970). However, an ordinance is not considered retroactive merely because it relates to prior facts or transactions. See State v. Scheffel, 82 Wn.2d 872, 514 P.2d 1052 (1973); Earle v. Froedtert Grain & Malting Co., 197 Wash. 341, 85 P.2d 264 (1938). But where the ordinance

“takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, . . .”

it is deemed retroactive. Society for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756 (No. 13,156) (C.C.D.N.H. 1814), quoted with approval in Hammack v. Monroe St. Lumber Co., 54 Wn.2d 224, 229, 339 P.2d 684 (1959).

The Medina variance ordinance is not being retroactively-applied. The parcel did not conform to the King County lot requirements in effect in 1948 and thus would have required a variance for the issuance of a building permit even then.

The Board of Adjustment’s ruling that the Lewis brothers stand in the shoes of their predecessor, their mother, for purposes of the application of the hardship exception is supported by the record and by decisions on the issue. Although the brothers received the parcel by devise, they were participants in and well aware of the development which created the substandard parcel. See Borough of Baldwin v. Bench, 11 Pa. Commw. 410, 315 A.2d 911 (1974). Under such circumstances, the hardship was self-inflicted. Further, when the request for a variance was before the Board, the petitioner was the estate of Melita G. Lewis. Her estate can properly be held to stand in her shoes. The Board of Adjustment was therefore foreclosed by ordinance from granting a variance when it found as a fact upon substantial evidence that the Lewis brothers created their own hardship. The Board properly failed to consider whether the denial of the request of a variance “creates a substantial, serious, and real hardship upon . . . the plaintiffs . . . and for all intents and purposes destroys the value thereof.” Finding of fact No. 9. The fact that such hardship, if any, was self-inflicted resolves the issue.² There is no attack upon the constitutionality and lawfulness of the ordinance (finding of fact No. 10).

The Board’s ruling is consistent with variance provisions of the ordinance and therefore was not arbitrary or capricious.

Reversed.

Swanson, J., concurs.

1 Although Medina now requires 16,000 square feet of area, at the time the parcel in question was platted, it was a part of King County which required only 6,000 square feet. The parties recognize that the King County zoning requirements regulate the parcel as provided for in a “grandfather” clause of the Medina zoning regulations.

2 Whether a relative who would be barred from receiving a variance because the hardship is self-inflicted can transfer the parcel to another relative who had no knowledge of or participation in the creation of the hardship and thereby avoid the self-inflicted question is not before us, but dicta in Borough of Baldwin v. Bench, supra, suggests such a transferee is also barred.