CITIES ‑- COMPREHENSIVE ZONING

CITIES ‑- COMPREHENSIVE ZONING

A city may change its comprehensive plan of zoning if the change promotes health, safety and public welfare.

                                                                    - - - - - - - - - - - - -

                                                                    July 24, 1956

Honorable William C. Goodloe
State Senator, 32nd District
1084 Dexter Horton Building
Seattle 4, Washington                                                                                                              Cite as:  AGO 55-57 No. 303

Dear Sir:

            In a letter previously acknowledged you presented a situation wherein the City of Seattle, pursuant to statutory authority, many years ago adopted a comprehensive plan of development for the city.  Now, it is proposed to adopt a new and different plan.  Your specific question may be stated as follows:

            What, if any, limitations or restrictions exist on the power of a city government to adopt successive comprehensive plans?

            As qualified in the following analysis, our answer is that no limitations exist on the power to adopt a new comprehensive plan.

                                                                     ANALYSIS

            Chapter 35.63 RCW authorizes the establishment of city, county and regional planning commissions.  The sections of the code with which we here are primarily concerned are as follows:

            RCW 35.63.100

            "The commission may recommend to its council or board the plan prepared by it as a whole, or may recommend parts of the plan by successive recommendations; the parts corresponding  [[Orig. Op. Page 2]] with geographic or political sections, division or subdivisions of the municipality, or with functional subdivisions of the subject matter of the plan, or in the case of counties, with suburban settlement or arterial highway area.  It may also prepare and recommend any amendment or extension thereof or addition thereto.

            "Before the recommendation of the initial plan to the municipality the commission shall hold at least one public hearing thereon, giving notice of the time and place by one publication in a newspaper of general circulation in the municipality and in the official gazette, if any, of the municipality.  A copy of the ordinance or resolution adopting or embodying such plan or any part thereof or any amendment thereto, duly certified as a true copy by the clerk of the municipality, shall be filed with the county auditor.  A like certified copy of any map or plat referred to or adopted by the ordinance or resolution shall likewise be filed with the county auditor.  The auditor shall record the ordinance or resolution and keep on file the map or plat."

            RCW 35.63.120

            "Any ordinance or resolution adopting any such plan or regulations, or any part thereof, may be amended, supplemented or modified by subsequent ordinance or resolution adopted upon recommendation of or with the concurrence of the commission."

            It seems obvious that the legislature intended the zoning regulations to be flexible.  Both RCW 35.63.100 and 35.63.120 specifically provide for amendments and additions.  The question becomes, how far can the city go in changing the existing plan?

            There appears to be no statutory limitation on the power to rezone.  However, the courts have set down certain practical restrictions with respect to zoning.  We feel the reasoning employed would apply to rezoning.  Thus courts have uniformly held zoning ordinances invalid where the interests of public welfare are negligible and the damage to private interests great, and where the ordinances were not reasonable, but arbitrary and capricious.  In the latter instance it has  [[Orig. Op. Page 3]] been deemed an unlawful taking of private property.  8 McQuillin on Municipal Corporations (3rd Ed.), §§ 25.20 et seq.

            Our court inState ex rel. Warner v. Hayes Investment Corp., 13 Wn. (2d) 306, 316, in considering county zoning, stated that the zoning must be "reasonably necessary or requisite in the interest of health, safety, morals, and the general welfare," The court on page 317 makes the following statement:

            ". . . We have not receded from the rule that, where the effect of a zoning ordinance or resolution is to destroy or prohibit the continuance of an established and otherwise lawful business, the ordinance or resolution as applied to the property of the objecting owner will not be upheld unless the court can say that it tends to promote the public health, morals, safety, or welfare. . . ."

            In answer to the final paragraph of your letter, we feel that no parallel may be drawn to the city's power to establish an original grade and lack of power to change the grade without compensation to abutting owners.  RCW 35.22.280 (8) specifically provides for payment of damages to the owners adversely affected by such change.  No such provision exists in chapter 35.63 RCW.

            We conclude that the city has the power to adopt successive comprehensive plans.  They must, however, be reasonable and not arbitrary.  They must be necessary to the promotion of health, safety and the public welfare.

            We hope this opinion will prove of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

CLYDE A. BARNARD
Assistant Attorney General