Sherwood v. Grant County

McInturff, J. Mr. and Mrs. Sherwood appeal the trial court's affirmance of a decision made by the Grant County Board of Adjustment to issue a variance from the terms of the zoning ordinance to Darrell and Toni Miller. We affirm. The Millers own real property in Willow Acres zoned S-l which permits residential buildings and certain agricultural activities, but excludes mobile homes. In 1978, they applied to the Grant County Planning Commission for a rezone of their property to S-2, which allows mobile homes. The Planning Commission recommended against the change; subsequently, the Millers moved a mobile home onto their property. On August 20, 1982, in a separate action (Grant County cause 29041) the Millers were ordered to remove their mobile home. They did not do so and were subsequently held in contempt. After application to the Board for a variance, the variance was granted and the decision upheld by the Grant County Superior Court. The Board made the following pertinent findings to support its issuance of the variance: Finding of fact 4: The locale in which the mobile home is situated has at least 131 mobile homes within .3 of a mile. Finding of fact 5: The home is attractive, well maintained and sits on a permanent foundation. Finding of fact 6: Neighbors adjacent to the Millers were not opposed to the variance. Finding of fact 7: Less than 60 feet north of Millers' property is a mobile home park, Cascade Village. Finding of fact 8: Those in opposition to the variance live in Bertram Plat located on the northern edge of Cascade Village. Finding of fact 9: Within Willow Acres there are three other mobile homes and four mobile homes on the same street as the Millers. Section 17 of the Grant County zoning ordinance provides the following: [498] Board of Adjustment The Board of Adjustment, subject to appropriate conditions and safeguards as provided by this Title, shall hear and decide: (A) Variances: Applications for variances from the terms of the Zoning Ordinance; provided that any variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privilege inconsistent with the limitations upon other properties in the vicinity and zone in which subject property is situated, and that the following circumstances are found to apply: 1. Because of special circumstances applicable to subject property including size, shape, topography, location or surroundings, the strict application of the zoning ordinance is found to deprive subject property of rights and privileges enjoyed by other properties in the vicinity and under identical zone classification. 2. That the granting of the variance will not materially affect adversely the health or safety of persons residing or working in the neighborhood of the proposed use and will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which subject property is situated. (Italics ours.) This ordinance is based upon RCW 36.70.810 which contains the same language. The standard of review by the Court of Appeals is whether the action by the Board was arbitrary, capricious or contrary to law. Lewis v. Medina, 87 Wn.2d 19, 22, 548 P.2d 1093 (1976); Martel v. Vancouver, 35 Wn. App. 250, 666 P.2d 916 (1983); Murphy v. Seattle, 32 Wn. App. 386, 389, 647 P.2d 540 (1982). The standard of review must be applied directly to the record of the administrative proceeding. Murphy, at 390. Agency action is "arbitrary and capricious" only if it is "willful and unreasoning action in disregard of facts and circumstances." Skagit Cy. v. Department of Ecology, 93 Wn.2d 742, 749, 613 P.2d 115 (1980) (as cited in United Parcel Serv., Inc. v. Department of Rev., 102 Wn.2d 355, [499] 365, 687 P.2d 186 (1984). Mr. and Mrs. Sherwood argue the action of the Board was contrary to law. However, the cases they cite are based on the type of zoning ordinances interpreted in Martel v. Vancouver, supra, and Douglass v. Spokane, 25 Wn. App. 823, 829, 609 P.2d 979 (1980), which require, among other things, unnecessary hardship or practical difficulties not the result of the owner's own action. The Grant County ordinance, however, has provisions which make specific reference to special circumstances affecting the property including location or surroundings and the fact the subject property is being deprived of rights and privileges enjoyed by other properties in the vicinity and under the same zoning classification. The Sherwoods cite Ling v. Whatcom Cy. Bd. of Adj., 21 Wn. App. 497, 585 P.2d 815 (1978), which denied a variance to construct a multi-family residence on property zoned S-2, which allowed only single family residences. The Board found there were no special circumstances which justified the issuance of the variance that did not apply generally to the other property in the same zone. The court stated at page 500: If Ling's application for a variance were to be granted, it would appear that the Board would have no basis for denying subsequent variance applications by other owners. The single-family zoning benefits enjoyed by the area would be effectively lost. The same concern was evident in the minutes of the Grant County Board of Adjustment, specifically the effect the issuance of the variance would have on other properties in the area as they related to maintaining the integrity of the zoning plan. However, the minutes reflect the variance was issued for this single parcel because of its particular location on Ottmar Road. Thus, the "domino effect" on other parcels of property in this zone would be minimal, if not nugatory. Ling is not dispositive of this, particular factual situation. In reviewing the evidence we must determine if [500] there are special circumstances applicable to the subject property which effectively deprive the Millers of a privilege granted to other property owners in that zone and if the variance were granted, whether the variance would be injurious to the interest of the public welfare. The special circumstances applicable to the subject property include its location within 60 feet of a mobile home park and the fact it is surrounded by 131 other mobile homes within .3 of a mile, including 3 within Willow Acres and 4 on the same street as the Millers. At least 2 of those mobile homes are located in the same S-l zone as the Millers; the Latting mobile home because of a variance and the Bohnes, who were grandfathered in. There is also an uncontroverted affidavit from a local realtor which concludes financing would not be available for the construction of a home on the site. Testimony of neighbors shows a high degree of approval of the variance and the fact the home was attractive and well maintained. Mr. and Mrs. Sherwood also argue the Millers should be denied the variance because the hardship they suffered was self-imposed. However, our affirmance is based upon grounds other than hardship, particularly the characteristics of the location and surroundings of the property, as it exists, with or without the presence of the mobile home. Their illegal act had been previously dealt with in a separate action. The variance will allow the Millers the same privilege with respect to the use of the property as that granted to their neighbors. We hold the action taken by the Board was not arbitrary, capricious, or contrary to law, but was in compliance with the Grant County zoning ordinance. The second issue raised by Mr. and Mrs. Sherwood is whether there is substantial evidence to support the Board's findings of fact. We note no error assigned to any findings of fact nor to any conclusion of law except in the body of Mr. Sherwood's brief. Despite this failure to comply with RAP 10.3(g) we cite the following rule from Ling, at 499-500: [501] Ling's final contention is that the denial of his variance application is not supported by substantial evidence in the record as a matter of law. The contention is without merit. The "substantial evidence" standard of review is inapplicable. As stated in Lewis v. Medina, supra at 22, [t]he rule is well established that a judicial review of the action of a Board of Adjustment is limited to an inquiry of whether the action of the board is "arbitrary, capricious, or contrary to law." As stated by the respondents: Where there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached. Washington Ass'n for Retarded Citizens v. Spokane, 16 Wn. App. 103, 111, 553 P.2d 450 (1976) (citing Lillions v. Gibbs, 47 Wn.2d 629, 633, 289 P.2d 203 (1955)). The judgment of the Superior Court is affirmed. Green, C.J., concurs.