Development Services of America, Inc. v. City of Seattle

138 Wash. 2d 107

• Court: Washington Supreme Court
• Decided: June 10, 1999
• Docket: No. 66653-9
• Status: Published

Opinions

Johnson, J.

— The City of Seattle denied petitioner, Services Group of America, Inc., a conditional use permit for a rooftop helistop. Petitioner appealed. We granted review in order to determine whether the City of Seattle lawfully found the helistop was not a “necessary element” of petitioner’s business services. We affirm the City of Seattle’s action denying the permit.

FACTS

Services Group of America, Inc. (SGA) .is a diversified family of companies including Food Services of America, Food Products International, AmeriFresh, Eagle Pacific Insurance Group, and Development Services of America. Its operations include food wholesaling, agricultural products, international trade, property development, and insurance.

In 1983, SGA began operating a helicopter from its headquarters on Harbor Island in Seattle. In 1990, SGA discontinued use of the helistop at this location and moved temporarily to Kent to await completion of a new headquarters building in west Seattle, approximately one-half mile from its former headquarters on Harbor Island.

On September 20, 1990, SGA applied to the City of Seattle (City) for a conditional use permit to build a helistop at its new headquarters. In May 1995, the City Council denied the permit request. The City Council concluded the helistop was not a “necessary element” of SGA’s business services as required under the applicable portion of former Seattle Municipal Code (SMC) 23.47.006(C)(2)(c).¹ During the pendency of its application, and through to the present, SGA has been using Boeing Field as a landing site for its corporate helicopter.

The pertinent facts adduced during the administrative process tended to show that SGA used its helicopter for a number of purposes related to its business operations. SGA stated its overall business strategy was to centralize operations in the new Seattle headquarters, maintain lean management staffing, use computer and telecommunications links, and high speed point-to-point travel, particularly the corporate helicopter, to transport management personnel to the company’s various operations locations.

Declarations by SGA employees stated in general terms that the helicopter’s Boeing Field location was unsatisfactory and the rooftop helistop was, therefore, necessary. Travel time of up to 45 minutes or one hour between SGA’s west Seattle location and Boeing Field was cited as the reason for the necessity of the rooftop helistop. Evidence showed normal travel time from SGA headquarters to Boeing Field averaged 15 to 20 minutes, with occasional delays of up to one hour.

In addition to the declarations, Lincoln Ferris, SGA’s vice president of community relations, and Tom Stewart, SGA’s chief executive officer, testified before the City hearing examiner as to the necessity of the helistop. The essence of their testimony went to the utility of the helicopter as a tool to maximize corporate efficiency. As to the specific lack of a rooftop helistop, Ferris testified that, without the helistop, SGA “hasn’t gone broke, it hasn’t gone out of business, but it has been inconvenient.” Transcript Before the Hr’g Examiner at 219 (Nov. 2, 1994). Similarly, Stewart testified that traveling to Boeing Field to utilize the corporate helicopter had been “very inconvenient.” Tr. Before the Hr’g Examiner at 243 (Nov. 3, 1994).

PROCEDURAL HISTORY

The City’s Department of Construction and Land Use (DCLU) initially reviewed SGA’s permit application. SGA was required to meet conditions of the State Environmental Policy Act of 1971 (SEPA), as well as helistop conditional use criteria (former SMC 23.47.006). DCLU’s SEPA decision was a final decision. Under the SMC, however, the City Council reserved to itself the original decision-making authority on whether helistop conditional use criteria had been met.

After its initial review, DCLU determined neither SEPA nor the City’s conditional use criteria were met based on its conclusion the helistop would result in noise and land use impacts that could not be mitigated, and the helistop was not a business necessity. Accordingly, DCLU issued a decision denying the helistop under its SEPA authority, and recommended the City Council deny approval of the helistop under the City’s conditional use criteria.

DCLU’s negative recommendation under the City’s conditional use ordinance was automatically referred to the City hearing examiner. In addition, SGA appealed DCLU’s SEPA decision. The hearing examiner consolidated the hearing on the conditional use recommendation with the hearing on the related SEPA appeal. After taking additional evidence and hearing witnesses, the hearing examiner reversed DCLU’s SEPA decision, finding there were no unavoidable significant impacts and, therefore, concluding the proposal could not be denied under SEPA authority. That decision was not appealed and is now final.

In a separately issued decision, the hearing examiner addressed the adequacy of SGA’s proposal under the City’s conditional use criteria for helistops, former SMC 23.47.006. The hearing examiner made specific findings of fact and conclusions of law. The hearing examiner made numerous findings regarding the various business uses to which SGA put its helicopter. However, only a single finding of fact relates to the necessity of the helistop as opposed to the overall usefulness of the helicopter.

The additional time expended by SGA personnel in traveling to and from Boeing Field to access the helicopter, could be considerable from a cumulative view. By way of example, if on average 3 SGA personnel traveled to Boeing to ride on the helicopter, and the trip to Boeing took on average 20 minutes each way, if there was only one trip per month during a year, unnecessary travel time would be the equivalent of 3 weeks.

Findings and Recommendation of the Hr’g Examiner, CF No. 298068, writ at 15 (Dec. 21, 1994). Based on the findings of fact, the hearing examiner concluded the helistop was a “necessary element” of SGA’s business and, contrary to DCLU, recommended the City Council approve the project.

On March 28, 1995, the matter came before the City Council’s Housing, Community Development and Urban Environment Committee (Committee). The Committee heard oral argument from the parties of record (Pigeon Point Community Council, DCLU, and SGA). On April 25, 1995, after allowing additional time for the members to review the record, the Committee voted 2 to 1 to recommend to the full City Council that approval be denied.

On May 8, 1995, the matter came before the full City Council (council member Donaldson recused at the request of SGA). The City Council adopted the hearing examiner’s findings of fact as they related to mitigation pursuant to SEPA. Based on its conclusion that the hearing examiner’s findings focused almost exclusively on the usefulness of the helicopter rather than on the necessity of the helistop, the City Council did not adopt the hearing examiner’s findings as they related to the “necessary element” criterion under former SMC 23.47.006(C)(2)(c).

Based on its own findings and conclusions, the City Council denied the permit. Primarily, the City Council based its decision on SGA’s proximity to Boeing Field, the average commute time saved by moving the helistop to SGA’s headquarters, and whether the types of uses described by SGA were of a kind that required a rooftop helistop.

The City Council concluded the average 15- to 20-minute commute time gained by permitting the helistop did not equate to a business necessity, that general statements regarding lost productivity and inefficiency did not prove necessity, and that SGA’s continued business growth belied the necessity of the helistop. Additionally, the City Council concluded SGA had proven only that a rooftop helistop was a business convenience, “but convenience does not equate to necessity.” Clerk’s Papers at 37 (Findings, Conclusions and Decision of the City Council, C.F. 298068, at 12 (May 8, 1995)). Accordingly, the City Council found SGA had not shown the helistop itself was necessary to SGA’s business and denied the conditional use application.

On May 19, 1995, SGA sued the City in King County Superior Court for damages under constitutional, statutory, and tort theories; petitioned for constitutional and statutory writs of certiorari and mandamus pursuant to chapter 7.16 RCW; and sought declaratory and injunctive relief. The City removed the cause to federal district court. The federal district court took jurisdiction of all damages claims but remanded the writ issues to the superior court. The superior court upheld the City Council’s decision denying the helistop conditional use permit and dismissed the writs.

SGA appealed. The Court of Appeals upheld the City Council’s decision in an unpublished opinion. Tradewell Group, Inc. v. City of Seattle, No. 38431-7-1 (Wash. Ct. App. Feb. 9, 1998). The court reasoned the term “necessary,” as contained within former SMC 23.47.006, was synonymous with “essential.” On that basis, the court found the City Council’s interpretation of the ordinance was not contrary to law and was supported by substantial evidence. We granted review.

ANALYSIS

The only issues before this court are those properly falling within the writ of certiorari (writ of review) under chapter 7.16 RCW.² SGA includes in its briefing factual issues relating to the SEPA administrative process, particularly the fact SGA felt it was unfairly treated by the City on the adequacy of its environmental impact statement. However, the hearing examiner found in favor of SGA on all SEPA related issues. That decision was not appealed by the City and is, therefore, not before this court. In addition, because the federal district court retains jurisdiction over SGA’s constitutional, statutory, and tort damage claims, issues relating to those claims will not be addressed by this court.

Standard of Review

The grant or denial of a special use permit is adjudicatory in nature. Sunderland Family Treatment Servs. v. City of Pasco, 127 Wn.2d 782, 788, 903 P.2d 986 (1995). Review is by writ of certiorari under chapter 7.16 RCW.³ Sunderland, 127 Wn.2d at 788. Under RCW 7.16.120, issues of law are reviewed to determine whether the decision below was contrary to law. Sunderland, 127 Wn.2d at 788. This is a de novo standard. Issues of fact are reviewed to determine whether they are supported by competent and substantial evidence. Id. (citing RCW 7.16.120(4)-(5)). This is a deferential standard and requires the court to view the evidence in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority. Sunderland, 127 Wn.2d at 788.

The City argues and SGA does not dispute that, under the circumstances of this case, the City Council was the highest forum that exercised fact-finding authority. Although the procedures required the hearing examiner to take evidence and make a recommendation based on written findings and conclusions (SMC 23.76.052(E)-(H)), the City Council reserved to itself the ultimate duty of adopting final findings of fact and conclusions of law. SMC 23.76.056(B). Further, the SMC required the City Council’s decision be based upon its own findings and conclusions. Id. Thus, the City Council did not sit in an appellate capacity but was the ultimate factfinder and original decision maker on the conditional use permit at issue. Accordingly, we review the action of the City Council to determine whether it is contrary to law or not supported by substantial evidence in the record. Sunderland, 127 Wn.2d at 788.

Under the conditional use ordinance at issue, a helistop may be permitted only upon a showing (among other things) that the “helistop is a necessary element of the service provided by the business establishment to which it is accessory . . . Former SMC 23.47.006(C)(2)(c) (emphasis added).

On several theories, SGA attacks the City Council’s interpretation of the “necessary element” criterion. The gist of SGA’s argument is that the City Council’s application of the ordinance was overly restrictive and, thus, unlawful.

SGA argues the City Council’s interpretation requires an applicant to prove it would go “out of business” without the helistop. SGA also argues the City Council unlawfully applied the criteria of the amended SMC (allowing only medical, news gathering, and emergency service helistops). SGA would have this court interpret the applicable language to permit a helistop when the applicant proves it is “reasonably necessary” to his or her business. Citing Mall, Inc. v. City of Seattle, 108 Wn.2d 369, 378, 739 P.2d 668 (1987), SGA argues ambiguous zoning ordinances are to be strictly construed in favor of the landowner.

Contrary to SGA’s argument, the City Council’s interpretation of the “necessary element” criterion does not require an applicant to prove that it will go “out of business” in order to meet the criterion. The quoted language merely recognizes that lack of a rooftop helistop has not been a significant business or financial burden to SGA. Moreover, the quote is taken directly from the testimony of Lincoln Ferris, SGA’s vice president of community relations, who stated SGA had not gone “out of business” without the helistop, but that it had been “inconvenient.”

Nor has SGA shown the City Council improperly applied the subsequently amended helistop ordinance. The City Council’s decision appears to be primarily based on its conclusion that the bulk of the evidence went to the usefulness of the helicopter, rather than to the necessity of the helistop itself. Substantial evidence supports the City Council’s conclusion that the rooftop helistop was not “necessary,” but merely “convenient” and “efficient,” and that commute times to Boeing Field do not constitute an undue burden on SGA or deprive it of the usefulness of its helicopter.

SGA’s argument that ambiguous zoning ordinances must be construed strictly in favor of the landowner is unpersuasive. First, SGA itself asserts the language in question is not ambiguous. More importantly, the law does not require strict construction in favor of the landowner. So long as the proposed use is within the scope of the ordinance, a zoning ordinance is construed to effectuate its plain purpose and intent.

It is the general rule, recognized and adopted by this court, that zoning ordinances should be liberally construed to accomplish their plain purpose and intent. At the same time, the court bears in mind that they are in derogation of the common-law right to use property so as to realize its highest utility and should not be extended by implication to cases not clearly within the scope of the purpose and intent manifest in their language.

State ex rel. Standard Mining & Dev. Corp. v. City of Auburn, 82 Wn.2d 321, 326, 510 P.2d 647 (1973) (emphasis added). Accord Keller v. City of Bellingham, 92 Wn.2d 726, 730, 600 P.2d 1276 (1979); Dando v. King County, 75 Wn.2d 598, 601, 452 P.2d 955 (1969); Morin v. Johnson, 49 Wn.2d 275, 279, 300 P.2d 569 (1956); Hauser v. Arness, 44 Wn.2d 358, 370, 267 P.2d 691 (1954).

Read in full, Mall, Inc. is not to the contrary. See Mall, Inc., 108 Wn.2d at 378. Furthermore, Mall, Inc. relies on Morin. See Mall, Inc., 108 Wn.2d at 378 (citing Morin, 49 Wn.2d at 279). In Morin, we specifically stated that in “any doubtful case, the court should give great weight to the contemporaneous construction of an ordinance by the officials charged with its enforcement.” Morin, 49 Wn.2d at 279 (emphasis added). Accord Keller, 92 Wn.2d at 731; Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 448, 536 P.2d 157 (1975).

Here, the purpose and intent of the ordinance was to limit the use of helistops within commercial zones in the City. Under its plain language, former SMC 23.47.006 permitted helistops only where they were actually “necessary” to the business of the applicant. SGA itself acknowledges former SMC 23.47.006 was intended “to establish a standard for private commercial helistops that was stricter” than previously allowed. Br. of Appellants at 25. According to SGA, “[w]hen the City of Seattle first began adopting new conditional use criteria for helistops in the 1980’s, it raised the standards of approval by requiring that such helistop use must not be merely ‘incidental’ to the principal use, but be ‘integral’ to the use.” Br. of Appellants at 24.

“Necessary” is not defined in the ordinance. However, it is defined in the dictionary as something “that cannot be done without : that must be done or had : absolutely required : essential, indispensable . . . .” Webster’s Third New International Dictionary 1511 (3d ed. 1986). Similarly, “integral” is defined as, “to form a whole : essential to completeness . . . .” Webster’s at 1173. While less restrictive definitions of both words exist, such definitions do not comport with the admittedly restrictive intent of the ordinance.⁴

In context, we find the City Council’s interpretation of the ordinance fair and correct. The City Council found SGA did not “require” the helistop to effectively carry on its business. The City Council also concluded the facts did not show a rooftop helistop was “necessary” to SGA’s business, but was merely a business “convenience.” While the City Council did not attribute a specific definition to the language of the ordinance (merely concluding the helistop was not “necessary” to SGA’s business), the City Council’s findings and conclusions are not contrary to the purpose and intent of the ordinance and find substantial support in the record.

Given its admittedly restrictive purpose, we reject SGA’s argument that the ordinance must be read to permit a helistop whenever an applicant proves it is “reasonably necessary.” Such a construction would substantially deprive the ordinance of its limiting effect. Based on the record, SGA simply did not prove the helistop was a “necessary element” of its business and the City Council reasonably so concluded. Although it submitted numerous employee affidavits and provided testimony by various corporate officers, SGA could not identify a single, specific instance where the helistop itself, as opposed to the helicopter in general, was a necessary feature of its business services.

In sum, we hold that in order to fulfill the “necessary element” criterion, something more than business “convenience,” “efficiency,” or “reasonable” necessity is required. Under the ordinance, an applicant must show the requested helistop is actually “necessary” to its business services. While we agree with SGA that the helicopter itself is a useful business tool,⁵ SGA has failed to show why landing on the roof of its west Seattle headquarters is a “necessary” or “essential” element of its business. We conclude the City lawfully interpreted and applied the ordinance when it denied the helistop conditional use permit.

SGA makes several secondary arguments. We address these briefly. First, SGA argues in the absence of any adverse impacts to the public welfare it is beyond the police power of the City to condition approval of the helistop on a showing of business necessity. It argues that because any adverse impacts can be mitigated, the public welfare is no longer affected and the helistop must be approved.

We disagree. Neither the hearing examiner nor the City Council determined that all impacts on the public welfare would be eliminated by mitigation. They simply found that significant impacts could be minimized to conform to SEPA and the Seattle Municipal Code. We agree with the Court of Appeals that safety and noise remain legitimate concerns associated with this helistop (and helistops in general). Tradewell Group, No. 38431-7-1, slip op. at 9. The “necessary element” requirement is rationally related to the legitimate government purpose of limiting such effects upon the community. It is, therefore, within the police power of the City to impose that condition upon SGA.

Next, SGA argues the City Council failed to follow its procedures by not providing for an additional hearing when it rejected several of the hearing examiner’s findings and conclusions and substituted its own. SGA relies on former SMC 23.76.054(E) (amended by City of Seattle Ordinance 118012 (Feb. 1996)), which states:

If the Council examines the record and determines that a factual error exists or that essential information is missing from the record, the Council may:

1. Remand the request and record to the Director for further consideration and report; or

2. Remand the request to the Hearing Examiner and direct the Hearing Examiner to conduct another hearing, limited to the consideration of perceived factual error or new information, and to reconsider the recommendation; or

3. Open the record to correct the factual error or receive the new information. The Council shall conduct a hearing on the new or corrected information ....

SGA’s argument on this point is not well taken. First, the City Council did not find that a factual error existed; it simply rejected the hearing examiner’s findings and substituted its own based on the record. Second, the City Council’s findings were based on the record as found and were not based on any new information. Because the City Council neither corrected any factual error nor received new information, a hearing was not required under former SMC 23.76.054(E)(3).

Finally, SGA argues that, having rejected the City Council’s interpretation of the “necessary element” language of the ordinance and substituting its own definition, the Court of Appeals was required to remand the case to the City Council for further consideration. SGA misreads the Court of Appeals’ decision. The court did not reject the City Council’s action, it affirmed it. The only thing the court rejected was the argument put forth by the City attorney for a strict “but for” interpretation of the ordinance in its briefing to the Court of Appeals. In each case cited by SGA, remand resulted only upon reversal of the local land use decision at issue. E.g., Sunderland, 127 Wn.2d at 798 (denial of permit “improper”); Levine v. Jefferson County, 116 Wn.2d 575, 581-82, 807 P.2d 363 (1991) (county’s decision not supported by the evidence); Cougar Mountain Assocs. v. King County, 111 Wn.2d 742, 758, 765 P.2d 264 (1988) (county council did not comply with requirements necessary for SEPA denial).

Having affirmed the City Council’s decision, remand by the Court of Appeals would have been superfluous.

CONCLUSION

The City lawfully interpreted and applied its helistop conditional use ordinance. The “necessary element” criterion was within the police power of the City to impose as a condition of permitting. Absent factual error or the need for new information, the City was not required to hold additional fact-finding hearings. Having affirmed the City’s action, the Court of Appeals was not required to remand for further consideration.

We affirm in all respects.

Guy, C.J., Durham, Smith, Madsen, Alexander, and Ireland, JJ., and Seinfeld, J. Pro Tern., concur.

1 In 1993, prior to its decision in this case but after the filing of SGA’s application, the City Council amended the conditional use criteria for helistops in commercial zones. Only medical, news gathering, and emergency services are now permitted to operate helistops in commercial zones.

2 In its original petition and complaint, SGA sought a statutory writ of review under chapter 7.16 RCW and, in addition, writs of mandamus and constitutional review. The Court of Appeals did not address the standard of review nor has SGA briefed this issue to this court. However, a constitutional writ generally will not issue if either a statutory writ or direct appeal is available. Saldin Sec., Inc. v. Snohomish County, 134 Wn.2d 288, 293, 949 P.2d 370 (1998). Similarly, a writ of mandamus will not issue where there is an adequate remedy at law. RCW 7.16.170. Because the statutory writ of review is an available and proper remedy in this case, neither the constitutional writ of review nor the writ of mandamus lies.

3 Chapter 7.16 RCW no longer provides jurisdiction for judicial review of local land use decisions. See RCW 36.70C.030.

4 According to Black’s Law Dictionary, the meaning of the word “necessary” “must be considered in the connection in which it is used, as it is a word susceptible of various meanings. . . . It is an adjective expressing degrees, and may express mere convenience or that which is indispensable or an absolute physical necessity. . . . [Therefore], its force and meaning must he determined with relation to the particular object sought.” Black’s Law Dictionaey 1029 (6th ed. 1990).

5 We reiterate that SGA continues to utilize its helicopter out of Boeing Field, a short distance away.