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AGLO 1973 No. 103 - November 07, 1973
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Slade Gorton | 1969-1980 | Attorney General of Washington
Criteria to be applied in determining whether a rezone from Forestry Recreation and Residential to Industrial constitutes illegal spot zoning under prior decisions of the Washington Supreme Court.
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                                                                November 7, 1973
Honorable Earl F. Angevine
Prosecuting Attorney
Skagit County Court House Annex
Mount Vernon, Washington 98273
                                                                                                             Cite as:  AGLO 1973 No. 103
Dear Sir:
            This is written in response to your letter, previously acknowledged, requesting our opinion on the following question:
            "Under Washington case law, what legal tests and criteria apply in determining whether a rezone from Forestry Recreation and Residential to Industrial constitutes spot zone?"
            We respond to this question in the manner set forth in our analysis.
            Preliminarily, you have informed us that your request for our opinion on the above‑stated question is generally related to a pending proposal by the Puget Sound Power and Light Company (hereinafter referred to as Puget) to construct a nuclear power plant in Skagit county; and because of its readily understandable interest in our response we subsequently accepted and reviewed a legal brief containing a discussion of what legal counsel for this company believe are the pertinent court decisions and other authorities to be examined in answering your question.  We note that you also have been favored with a copy of this brief, which we will refer to below as The Puget Memorandum, and have heretofore provided us with a short critique of its contents.
            In accordance with our subsequent discussions, however, we will not here attempt to deal with any of the specific facts which may be involved with respect to that proposed project if and when an application for rezoning is formally presented to your board of county commissioners in connection therewith.  Instead, our opinion will be directed solely to the specific but abstract question you have asked.  In the final analysis, of course, it will  [[Orig. Op. Page 2]] be the county commissioners themselves, guided both by the legal principles to be set forth herein and by your own advice to them as their official legal adviser,1/ who will be required to decide whether or not to grant a rezone in that case if one should ultimately be requested of them.  Moreover, quite obviously, no application of those legal principles to that situation can, in any event, properly be made until all of the relevant facts pertaining thereto have been established.
            In order to place your question in proper focus, we believe it would be well to begin this opinion with a review of certain fundamental rules which govern all municipal zoning activities in this state.  Although implemented and regulated by statutory provisions such as those contained in chapter 36.70 RCW with respect to county or regional planning or in chapter 35.63 RCW with respect to incorporated cities and town, the basic source of authority for the adoption of a zoning code by either a county or a city or town (in order to regulate land uses within its territory) is Article XI, § 11 of our state Constitution which provides that:
            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."
            Accord, Nelson v. Seattle, 64 Wn.2d 862, 395 P.2d 82 (1964); Pierce v. King County, 62 Wn.2d 324, 382 P.2d 628 (1963); and State ex rel. Miller v. Cain, 40 Wn.2d 216, 242 P.2d 505 (1952).  To the extent that a municipality's exercise of this power in the field of land use zoning is regulated by enabling legislation, it is clear that the procedures set forth in that legislation must be followed.  State v. Thomasson, 61 Wn.2d 425, 378 P.2d 441 (1963); State ex rel. Kuphal v. Bremerton, 59 Wn.2d 825, 371 P.2d 37 (1962); and 8 McQuillin, Municipal Corporations (3rd ed.) §§ 25.249 ‑ 25.251.  In addition, however, it is critical here to note and understand that as with any exercise of the police power, municipal zoning is subject not only to an affirmative requirement implicit in Article XI, § 11 itself that it only be exercised ". . .  [[Orig. Op. Page 3]] in the interests of the health, safety, morals and general welfare of the people affected . . ."2/ but it is subject, as well to certain negative restraints arising, principally, from the due process and equal protection clauses of both the federal and state Constitutions.  As stated in Peterson v. Hagan, 56 Wn.2d 48, 351 P.2d 127 (1960), with respect to the latter:
            "We reject flatly the argument that the due process and equal protection clauses of the federal and state constitutions do not apply to statutes enacted in the exercise of the police power.  Otherwise, the result would be a police state, and the legislative branch of the government would be omnipotent.
            "The United States supreme court specifically decided that police regulations were subject to the equal protection clause of the fourteenth amendment in Atchison, Topeka & Santa Fe R. Co. v. Vosburg, 238 U.S. 56, 59 L.Ed. 1199, 35 S.Ct. 675.  The reasons for that conclusion were stated as follows:
            "'. . . But we cannot at all agree that a police regulation is not, like any other law, subject to the "equal protection" clause of the Fourteenth Amendment.  Nothing to that effect was held or intimated in any of the cases referred to.  The constitutional guaranty entitles all persons and corporations within the jurisdiction of the State to the protection of equal laws, in this as in other departments of legislation.  It does not prevent classification, but does require that classification shall be reasonable, not arbitrary, and that it shall rest upon distinctions having a fair and substantial relation to the object sought to be accomplished by the legislation.  . . .'"
            Both of these sets of constitutional bench marks are, moreover, of considerable significance insofar as the validity of any zoning ordinance is concerned.  Because zoning regulations result from an exercise of the police  [[Orig. Op. Page 4]] power and, thus, may only be adopted in furtherance of the health, safety, morals and general welfare of the people affected, it has generally come to be understood that behind any such regulations there should be some element of planning.  Statutorily, in the case of chapter 36.70 RCW (as under most other modern types of planning enabling legislation) this has led to a requirement that the zoning code of a county operating under this act is to ". . . further the purpose and objectives of a comprehensive plan . . ."  See, RCW 36.70.570 together with RCW 36.70.020 (6), which specifically defines this term to mean
            ". . . the policies and proposals approved and recommended by the planning agency or initiated by the board and approved by motion by the board (a) as a beginning step in planning for the physical development of the county; (b) as the means for coordinating county programs and services; (c) as a source of reference to aid in developing, correlating, and coordinating official regulations and controls; and (d) as a means for promoting the general welfare.  Such plan shall consist of the required elements set forth in RCW 36.70.330 and may also include the optional elements set forth in RCW 36.70.350 which shall serve as a policy guide for the subsequent public and private development and official controls so as to present all proposed developments in a balanced and orderly relationship to existing physical features and governmental functions."3/
             Secondly, because the essence of municipal zoning is classification ‑ i.e., the division of land into districts, with the land in each district being subjected to  [[Orig. Op. Page 5]] different regulations concerning its use4/ - it is inherently at all times in potential conflict with those constitutional guarantees of equal protection which are contained in both the 14th Amendment to the United States Constitution (referred to in the above‑quoted excerpt from Peterson v. Hagan) and in Article I, § 12 of our own state Constitution which provides that:
            "No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations."5/
             Your question, which we may now begin to consider directly in the light of the foregoing precepts, involves a particular type of zoning activity which has commonly come to be known as "spot zoning" ‑ a somewhat misunderstood term, we should initially note and underscore.  As stated in 51 A.L.R.2d at p. 266:
            "The student of the 'spot zoning' cases is faced at the outset with a problem of terminology.  This results from the fact that the term 'spot zoning' is used in many instances as a label for the conclusion reached by the court, that is, whether or not the zoning ordinance under consideration is valid.  Other courts, however, and sometimes the same courts at other times, use the term 'spot zoning' in a merely 'descriptive' sense.  And in still other instances the term is used as a mixed 'descriptive' and 'legal' term."
            The problem is basically one of semantics.  Read or interpreted literally, the phrase "spot zoning" as a purely descriptive term has a tendency to conjure up a vision of any zoning action the effect of which is to carve  [[Orig. Op. Page 6]] out a relatively small area situated within a larger whole and to treat that small area differently.  But while this is most certainly one of the requisite elements of what we will hereinafter for purposes of clarity refer to as illegal spot zoning, it is by no means the only element.  In other words, the mere fact that a zoning ordinance or an amendment thereto does single out for special treatment a small area (the spot) within a larger land unit will not, in and of itself, render the ordinance or amendment invalid.  In order to constitute an instance of illegal spot zoning there must also be certain other factors present, and the primary reason for our somewhat detailed preliminary review of the constitutional basis for, and restraints upon, municipal zoning activities was to enable us now to place these other factors in proper focus.
            Although this has not always been fully spelled out by the Washington court in its decisions dealing with spot zoning, the additional facts which must be shown in order to establish a case of illegal spot zoning stem, by and large, from a combination of (a) the constitutional prohibition against invidious or irrational discrimination which is contained in both the equal protection clause of Amendment 14 to the United States Constitution and in Article I, § 12 of the Washington Constitution, supra, and (b) the principle derived from Article XI, § 11, supra, that a basic function of any zoning regulation adopted under an enabling act such as chapter 36.70 RCW, supra, is to implement and carry out, rather than to frustrate, an underlying, previously adopted, comprehensive plan for the orderly development of the subject county or other municipality.
            In order both to exemplifiy this point and to identify and verbalize the nature of these additional factors let us now turn to the significant cases themselves, all of which have been decided within the last ten or so years, beginning with Pierce v. King County, supra.  At issue in that case was an amendment to the King county zoning code rezoning two lots within the heart of a neighborhood of single family residences so as to permit those lots to be used for a gasoline service station.  In considering the validity of this amendment the court first asked of itself the following questions:
            "Do we have here a spot zoning?  Is it spot zoning of such a character as to be deemed an arbitrary and capricious legislative act?"
             [[Orig. Op. Page 7]]
            Then, in order to set the stage for its answers to these questions ‑ with primary emphasis upon the second one ‑ the court quoted at length from several text writers' definitions of this term, saying:
            "The concept of spot zoning as an evil in the field of municipal growth is well recognized by nearly all authorities.
            "'Spot zoning is an attempt to wrench a single lot from its environment and give it a new rating that disturbs the tenor or the neighborhood, and which affects only the use of a particular piece of property or a small group of adjoining properties and is not related to the general plan for the community as a whole, but is primarily for the private interest of the owner of the property so zoned; and it is the very antithesis of planned zoning.  It has generally been held that spot zoning is improper, and that one or two building lots may not be marked off into a separate district or zone and benefited by peculiar advantages or subjected to peculiar burdens not applicable to adjoining similar lands.'  101 C.J.S., Zoning § 34.
            "A well supported statement is also found in 2 Metzenbaum, Law of Zoning (2d ed.) chapter X-m-(5):
            "'"Spot Zoning" is not usually favorably regarded, because, in too many instances, such practice has been employed in order to aid some one owner or parcel or some one small area, rather than being enacted for the general welfare, safety, health and well-being of the entire community.  . . .
            "' . . .
            "'"Spot zoning" merely for the benefit of one or a few or for the disadvantage of some, still remains censurable because it is not for the general welfare . . .'
            "The noted authority on municipal law, Charles S. Rhyne, states:
            "'"Spot zoning" has come to mean arbitrary and unreasonable zoning action‑-commonly by  [[Orig. Op. Page 8]] an amendment to a zoning ordinance, but also by the zoning ordinance itself, or, less commonly, by grant of a permit for a use other than the regular zone uses‑- by which a lot or small area is singled out and specially zoned for a use classification totally different and inconsistent with the classification of surrounding land indistinguishable from it in character, thus creating a mere island or "spot" non-conforming [[nonconforming]]use within the larger use zone, with a resulting new rating that disturbs the tenor of the neighborhood.  "Spot zoning" is thought of as zoning not in accordance with a comprehensive plan, but for mere private gain to favor or benefit a particular individual or group of individuals and not the welfare of the community as a whole, and thus in effect granting by amendment, a special exception or variance from general regulations.  "Spot zoning" of this nature has been found unauthorized, discriminatory, and invalid and an unlawful usurpation of the power to grant a variance.  . . .' Rhyne, Municipal Law, chapter 32, p. 810, 825."
            Finally, applying these principles to the factual situation which was before it, the court in the Pierce case held as follows:
            ". . . Where, as in the present situation, the zoning authority by official legislative action designates two lots for a gasoline service station in the heart of a neighborhood of single‑family residences already served by commercial and business facilities or subject to be so served in accordance with a comprehensive plan or scheme, such designation is patently a spot zoning; and where the record discloses no basis for such a zoning in furtherance of the public health, safety, or morals, or a contribution either to the general welfare of the people in the area or at large, the zoning is so clearly a spot zoning as to make it arbitrary, capricious and unreasonable.  It was, and is, therefore, void."
             [[Orig. Op. Page 9]]
            The next case in line to be noted is Anderson v. Seattle, 64 Wn.2d 198, 390 P.2d 994 (1964), wherein the court invalidated a rezone which, if allowed, would have permitted a six-story apartment house to be constructed in what was, basically, also a single family residential dwelling area.  In so ruling the court first made the following reference to its decision of a year earlier in the Pierce case:
            "In the recent case of Pierce v. King Cy., 62 Wn.2d 324, 382 P.2d 628 (1963), we recognized that all 'spot zoning' is not illegal; however, we follow the general rule that 'spot zoning' is invalid when it is primarily for the private interest of the owner of the property affected, and not related to the general plan for the community as a whole.  A zoning ordinance must have for its basis the public health, safety, morals, or general welfare; if not, it is arbitrary, capricious, unreasonable, and consequently void.  . . ."  (pp. 199-200.)
            The court in this case concluded as follows:
            "From this record, with no evidence to the contrary, we are satisfied that the building does not conform to the general purpose and comprehensive plan of the Seattle zoning ordinance, supra, and that the rezoning falls within the confines of invalid 'spot zoning' as defined in the Pierce case.  In fairness to the trial judge, however, it is to be noted that he did not have the benefit of the Pierce case . . ."  (p. 202.)
            Likewise, in the later and much publicized case of Smith v. Skagit County, 75 Wn.2d 715, 453 P.2d 832 (1969), the court invalidated a rezone amendment which was designed to permit the construction of an aluminum plant on otherwise rural Guemes Island ‑ after again defining illegal spot zoning in much the same terms as were used in Pierce and Anderson, and then adding, significantly, ". . . that the matter of size in zoning a spot is relative and should be considered in relation to all other circumstances . . ."  The court in this case expressed its ruling as follows:
            "The foregoing principles, it appears, forbid this amendment to the zoning resolution and reveal it as an illegal spot zoning.  Since size of the rezoned area  [[Orig. Op. Page 10]] must be considered in relation to the size of the whole district affected (Mathis v. Hannan, supra), we must relate the approximately 470 acres zoned for heavy industry to the entire island of abount 5,500 acres zoned residential-recreational.  When, with no change whatever in circumstances and conditions, and after about 5 years of intensive study and numerous hearings, Guemes had been zoned residential-recreational, the aluminum company's undertaking to buy the property for the site of its reduction plant constituted no change of conditions adequate in law to support the rezoning.  With an abundance of sites still available in areas zoned industrial, the fact that the aluminum company preferred Guemes Island to all others and insisted upon having it shows that the rezoning under attack here was for the peculiar benefit of the aluminum company, and detrimental to the neighboring owners and the general welfare.  To meet the company's demands, we think, was unreasonable, arbitrary and capricious, and, therefore, illegal."6/
             Then, two years later in Chrobuck v. Snohomish County, 78 Wn.2d 858, 480 P.2d 489 (1971), the court struck down as illegal spot zoning a proposed rezone to permit the establishment of an oil refinery in the middle of a rural, residential area situated on Port Susan Bay of Puget Sound, saying:            [[Orig. Op. Page 11]]
            "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 lest 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."  (pp. 871-2.)
            And finally, in Anderson v. Island County, 81 Wn.2d 312, 501 P.2d 594 (1972), the court in ruling against a rezone which would have allowed a cement batching operation in the midst of a similar rural, residential area near Holmes Harbor on Whidbey Island, expressed itself as follows:
            ". . . In the case before us, it is readily apparent that Island Sand and Gravel, Inc., is the primary beneficiary of the change in zoning classification.  The sole benefit to the public found by the board of commissioners was that expansion of the cement batching operation would assist in the development of Whidbey Island‑-a finding lacking evidentiary support.  Additionally, testimony at the  [[Orig. Op. Page 12]] public hearings on the issue indicated that approximately 150 neighboring property owners contend that the facility in question is not only unneeded, it is unwanted.  Since the rezoning here has resulted in a smaller area being singled out of a larger area for a use classification totally different from and inconsistent with that of the surrounding district, we conclude upon these facts that the board's action constituted spot zoning.  Because the action was not for the 'general welfare', it was in turn arbitrary and capricious."
            To be contrasted with these five recent cases in which municipal rezone amendments were invalidated is McNaughton v. Boeing, 68 Wn.2d 659, 414, P.2d 778 (1966).  In this case a rezone of 23 acres from residential to commercial use was upheld because of the fact that this acreage was adjacent to another 30-acre tract already zoned for business purposes.  In so holding the court said:
            "We are in complete disagreement with appellants' second argument that the action of the Board of County Commissioners in rezoning the 23 acres from residence to business constituted spot zoning; and that it is in any event arbitrary and capricious.  We find it difficult to envision the rezoning from residence to business of an undeveloped tract of 23 acres contiguous to a business zone as constituting 'spot zoning.'  It merely extended an existing business zone.  See Putney v. Township of Abington, 176 Pa. Super. 463, 108 A.2d 134 (1954)."
            Before proceeding further, let us pause here to note for the record that all of the foregoing cases are also among those discussed in The Puget Memorandum referred to at the beginning of this opinion.  In addition, legal counsel in preparing that memorandum have also called our attention to several other recent Washington cases which they have suggested may have some bearing upon the overall acceptability of the zoning change that their proposed project may require.  However, before we consider those additional cases let us first attempt to summarize the points to be derived from the decisions which we have reviewed so far.
            To begin with, as we emphasized at the outset, in none of these cases was it the mere existence of a "spot" which dictated the results reached.  Instead, it was a combination of this factor ‑ the singling out of a relatively  [[Orig. Op. Page 13]] small area within a larger whole for special treatment ‑ together with what we may now in retrospect count as three other factors that caused the court in each case to label the rezone amendments which were before it as arbitrary and capricious and, hence, as illegal spot zoning.
            The first additional factor clearly present in all of the cases in which a rezone was invalidated ‑ but not in the McNaughton case in which it was upheld ‑ was a significant inconsistency between the land use which would have been allowed in the smaller area if the zoning amendment had been upheld and those uses to which the immediately adjacent area were being put.
            Secondly, not only were the special land uses which would have been permitted if the rezone had been upheld in these cases inconsistent with the uses being made of land situated in the immediately surrounding area but they were also in conflict with the county's or city's comprehensive plan.  Thus, predicated upon an assumption that the underlying purpose of a comprehensive plan is to effectuate the orderly development of the subject area in such a manner as will enhance the health, safety, morals and general welfare of the people affected (accord, Article XI, § 11, supra) the rezone ordinances in each case were demonstrably not calculated to further those interests ‑ at least in the absence of any showing of a sufficient change in the overall circumstances affecting the area in question since the initial preparation of that plan to cause the plan itself to be no longer meaningful.
            And lastly, it seems also to have been apparent to the court in each of the cases in which the rezone was held to be invalid that, as directly prohibited by the express language of Article I, § 12 of the Washington Constitution, supra, the zoning amendments in question would, if allowed, have granted "special" privileges to a single person or group of persons with no countervailing general benefit for the community as a whole.  As was observed by the court in Smith v. Skagit County, supra,
            ". . . With an abundance of sites still available in areas zoned industrial, the fact that the aluminum company preferred Guemes Island to all others and insisted upon having it shows that the rezoning under attack here was for the peculiar benefit of the aluminum company, and detrimental to the neighboring owners and the general welfare.  . . ."
             [[Orig. Op. Page 14]]
            To the extent that it also identifies this same combination of factors as all being involved in each of those cases in which the Washington court has found illegal spot zoning to have existed, we are in general concurrence with the listing that appears on page 2 of The Puget Memorandum as follows:
            "1. A smaller area is singled out of a larger area and given some special treatment.
            "2. The classification or use allowed in the smaller area is totally different from and inconsistent with the classification of surrounding land so as to disturb the tenor of the neighborhood and create an inconsistency or conflict of use with the uses allowed in the surrounding area.
            "3. The action necessary to create the smaller area is taken for the private gain of one person or group of persons rather than for the general welfare of the community as a whole.
            "4. The action taken is not in accordance with the comprehensive plan."
            We are not, however, in total agreement with the introductory statement preceding this listing to the effect that all four of these characteristics must be present in a given case in order for a particular spot zoning to be found illegal.  It seems to us most unlikely, for instance, that a court which finds a clear cut case of special interest legislation (factor three), coupled with factors one and two, will at that point worry very much about whether, in spite of that aspect of the matter, the rezone was or was not in overall conformity with the applicable comprehensive plan.  All that conformity with the plan would prove in such a case, seems to us, is that perhaps something was wrong with the plan itself.
            This leads us, finally, to the several other recent Washington cases on zoning matters which counsel for Puget, as earlier noted, have also asked us to consider in connection with your question:  State ex rel. Pruzan v. Redman, 60 Wn.2d 521, 374 P.2d 1002 (1962); State ex rel. Myhre v. Spokane, 70 Wn.2d 207, 422 P.2d 790 (1967); and State ex rel. Standard Mining & Development Corp. v. Auburn, 82 Wn.2d 321, 510 P.2d 647 (1973), together with an aspect of McNaughton v. Boeing, supra, not heretofore discussed.   [[Orig. Op. Page 15]] As we understand it the principle which counsel would have us derive from these cases is that by the imposition of protective conditions ‑ either unilaterally by the zoning authority or by contract between it and the rezone applicant ‑  a zoning amendment which would otherwise be an illegal spot zone will be rendered legal.
            There can be no doubt that a municipality may impose conditions, either unilaterally, or by contract, in connection with the allowance of a particular land use ‑ whether in consequence of a zoning amendment, a conditional use permit, or a mere variance.  Both State ex rel. Myhre v. Spokane, supra, and the Standard Mining case amply support this proposition.  However, in neither of these cases was the existence of such conditions in any way related to the question of spot zoning.
            As for McNaughton v. Boeing, supra, The Puget Memorandum states that there, ". . . The rezone was conditioned on a number of requirements for the protection of adjacent residential properties, including adequate screening . . .," and then infers that it was this factor which led the supreme court to reject the appellants' claim of illegal spot zoning.  We find, however, no hint of this in the court's published opinion.  Instead, we think it clear from the excerpt therefrom which we have earlier quoted that the significant factor there (leading the court to uphold the challenged zoning amendment) was simply that of a consistency rather than an inconsistency between the use to be made of the rezoned area and that which was immediately adjacent to it.
            This leaves us, the, only with State ex rel. Pruzan v. Redman, supra, a 1962 decision of the court which, notably, preceded the above discussed line of spot zoning cases that began with Pierce v. King County, supra.  In referring to this case in their memorandum, counsel for Puget have described it as follows:
            ". . . In that case, it was alleged that the establishment of three needle‑type radio towers in a residential area amounted to an intrusion into the area of an industrial-type use creating an illegal spot zone.  However, the granting authority, the King County Board of Adjustment, had granted the use subject to certain conditions which were imposed in order to neutralize the impact of the towers on the surrounding area.  For example, the applicant was required to maintain large amounts of open space around  [[Orig. Op. Page 16]] the towers.  Under these circumstances, the Supreme Court turned down the spot zoning argument, stating, at page 531:
            "'The contention of appellants that the ordinance violates Art. 1, § 12 of our Constitution, for the reason that it results in "spot zoning," is disposed of by our determination that the standards and criteria provided for the issuance of a conditional use permit are adequate.'"
            A critical point to be noted in placing this last quoted statement by the court in proper focus is that the governmental action which was being challenged in the Pruzan case did not involve an amendment to the applicable zoning code, as in all of the other cases we have discussed in this opinion.  Instead, it merely involved the issuance of a conditional use permit within the purview of the existing code ‑ an administrative action by the board of adjustment rather than a legislative action by the county commissioners.  In challenging this action the appellants raised a question as to whether or not, in authorizing the issuance of such permits, the zoning code contained an expression of sufficient standards to avoid the pitfalls of an unconstitutional delegation of legislative powers in violation of Article II, § 1 of the state Constitution.  Keeting v. P.U.D. No. 1, 49 Wn.2d 761, 306 P.2d 762 (1957).  Concurrently, however, they also invoked the provisions of Article I, § 12, supra, relating to special privileges and immunities, arguing that because of this section,
            ". . .  to grant an administrative board discretion to determine policy in zoning or land use regulation is unconstitutional.  . . ."  (Emphasis supplied.)7/
             In making this argument the appellants relied on a prior statement by the court to that effect in State ex rel. Ogden v. Bellevue, 45 Wn.2d 492, 275 P.2d 899 (1954).  The Pruzan court, however, characterized the argument as being an assertion that the issuance of a conditional use permit under those circumstances constituted "spot zoning."  See, 60 Wn.2d 521 at 528.  It then responded by reviewing the text of the zoning ordinance, in the course of which the court first noted that the ordinance expressly required the board of adjustment to consider certain specified criteria in acting upon any applications for a conditional use permit,  [[Orig. Op. Page 17]] and that it further authorized the board in granting any such permit to impose protective conditions,
            ". . . to establish parity with uses permitted in the same zone in their freedom from nuisance generating features in matters of noise, odors, air pollution, wastes, vibration, traffic, physical hazards, etc., . . ."
            Then, the court further noted that such protective conditions had, in fact, been imposed by the board in connection with the case at hand, and for this reason it concluded (a) that the permit was valid; and (b) that its issuance did not violate either of the two constitutional provisions which the appellants had invoked.  The above‑quoted excerpt relative to Article I, § 12 and spot zoning was, accordingly, merely the court's verbalization of the last aspect of that conclusion.
            Thus analyzed, it seems to us that this case is, at best, only remotely related to the question of whether the imposition of protective conditions in connection with a rezone (i.e., an amendment to the zoning code itself) will have the effect of causing that which would otherwise be an illegal spot zone to be legally acceptable to the court.  Again, as we have said before, there can be no doubt that a municipality under existing Washington case law may impose such conditions, either unilaterally or by contract, in connection with a zoning amendment.  Accord, State ex rel. Myhre v. Spokane, supra, and State ex rel. Standard Mining & Development Corp. v. Auburn, supra.  And, perhaps, in some futute zoning case in which this argument is made, our court will further hold that an amendment to a municipal zoning code which would otherwise constitute illegal spot zoning, as above described, is valid because of the protection afforded to surrounding landowners by accompanying conditions.  Properly documented and presented, such an argument cannot be said to be wholly lacking in merit.
            As of the present time, however, our court has not so held ‑ nor are we aware of any courts in other jurisdiction which have done so.  Therefore, since your question, as stated at the beginning of this opinion, is limited in scope to existing Washington case law, we can hardly include any such conjecture as to the future within the ambit of our direct answer thereto.  For this answer we would, thus, at this time simply refer you back to the resume appearing on pp. 12-14, supra, which contains, in summary form, a statement of the "legal tests and criteria" which we believe to be  [[Orig. Op. Page 18]] currently applicable in determining whether ". . . a rezone from forestry recreation and residential to industrial constitutes [illegal] spot zoning . . ." under Washington case law.
            We trust the foregoing will be of some assistance to you.
Very truly yours,
Attorney General
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/See, RCW 36.27.020.
2/See, AGO 63-64 No. 69 [[to E. Lloyd Meeds, Prosecuting Attorney, Snohomish County on November 18, 1963]], and authorities cited therein.
3/In addition, see RCW 36.70.320-36.70.350 which describe both the required and optional elements of a comprehensive plan adopted under this act.  The "planning agency" referred to in RCW 36.70.020, supra, is either a county or regional planning commission created under RCW 36.70.030 or RCW 36.70.030, or it is a planning department established pursuant to RCW 36.70.040.  The "board," as also referred to in that statute, is the board of county commissioners of the particular county.  See, RCW 36.70.020 (2) and (13).
4/See, Talouse v. Board of Zoning Adjustment, 147 Maine 387, 87 A.2d 670 (1952).
5/As observed by the Washington court in Texas Company v. Cohn, 8 Wn.2d 360, 112 P.2d 522 (1941), this state constitutional provision and the federal Constitution's equal protection clause are to be taken as having essentially the same meaning.
6/In this case, as you know, the court also dealt at some length with another issue which, although largely independent of the question of spot zoning, we would be remiss not to mention here.  That was the question of procedural fairness as related to the conduct of hearings held in connection with a rezoning application ‑ from the standpoint of whether or not both sides in the controversy are afforded an equal opportunity to be heard.  If such procedural fairness is not afforded the resulting rezone will be subject to challenge even if it does not, necessarily, present a case of illegal spot zoning, per se.
7/See, appellants' brief at pp. 9-10.
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