State Ex Rel. Pruzan v. Redman

374 P.2d 1002, 60 Wash. 2d 521, 1962 Wash. LEXIS 343
CourtWashington Supreme Court
DecidedSeptember 20, 1962
Docket36129, 36216
StatusPublished
Cited by18 cases

This text of 374 P.2d 1002 (State Ex Rel. Pruzan v. Redman) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Pruzan v. Redman, 374 P.2d 1002, 60 Wash. 2d 521, 1962 Wash. LEXIS 343 (Wash. 1962).

Opinions

Hunter, J.

The above cases were consolidated for review on appeal. Both cases involve the legality of a conditional use permit, issued by the Board of Adjustment of King County, for the construction of a radio transmitter station in King County.

Carl Pruzan is the owner of 17 acres adjoining the city limits of Bellevue, in King County, which is zoned by the county as A-l for agricultural use under King County Zoning Code, Resolution No. 18801, § 14. He is also the owner of radio station KUDY, which is a standard broadcasting facility licensed by the Federal Communications. Commission (hereafter referred to as FCC). He filed an application with the Board of Adjustment (hereafter refer[523]*523red to as the board) for a conditional use permit to construct a radio transmitter station for KUDY. The location was approved by the FCC. The use permit would allow the construction of a one-story building and three 240-foot steel radio towers.

After a public hearing, as required by King County Resolution No. 20216, § 21, subsection 29.05, the board, on February 16, 1961, passed a motion determining it did not have jurisdiction under subsection 4.02 of the King County Zoning Code, supra, but providing that in the event the superior court determined the board did have jurisdiction, it was proper, as a result of the court’s findings, that a conditional use permit should be granted. Thereafter, Mr. Pruzan, as the plaintiff, on February 24, 1961, obtained a writ of certiorari from the Superior Court for King County, to review the determination of the board.

At the hearing on the writ, on March 10, 1961, the court held the board had jurisdiction and, on the basis of the proviso in the board’s decision, directed that the conditional use permit be issued. Residents and abutting property owners to the proposed location, Harvey Murdock, A. L. Durkee, Lloyd C. Murdock and John Murdock, were permitted to intervene, on March 14, 1961, and to file a motion for the reconsideration of the jurisdictional question alone. After a hearing on the motion to reconsider, on March 15, 1961, the court denied their motion and entered the final order. Thereupon, the intervenors appealed to this court from the order in cause No. 36129.

Upon the issuance of the conditional use permit by the board to the plaintiff on March 16, 1961, the intervenors in cause No. 36129, as relators in cause No. 36216, obtained a writ of certiorari from the King County Superior Court to review this action of the board.

In pursuance of a hearing upon the writ on all issues except on the question of jurisdiction of the board to issue the conditional use permit, an order was entered on June 12, 1961 quashing the writ and affirming the decision of the board. From this order, the relators have appealed.

[524]*524By reason of the consolidation of the appeals, the assignments of error raised by the appeals will be considered as if there were only one appeal before us. The parties who are intervenors in cause No. 36129 and relators in cause No. 36216, being the same persons, will be referred to as the appellants. The owner of radio station KUDY, plaintiff in the former case and intervenor in the latter case (respondent on this appeal), will be referred to as KUDY.

The appellants first assign error to the trial court’s finding that the board had jurisdiction to issue the conditional use permit to KUDY.

It is agreed that this question will be resolved by the determination of whether a radio broadcasting station is a utility within the meaning of the zoning code which states:

“Section 4. R-6 Residential Single Family District,
“4.02 Uses Permitted After Review by the Board of Adjustment and After the Issuance, by the Board of Adjustment, of a Conditional Use Permit.
“1. Public utility and governmental buildings or structures including art galleries, libraries and museums:

The term public utility, with which we are here concerned, does not involve the distinction between public ownership and private ownership of a utility. The question is whether the privately owned facility, in the instant case, is so impressed with a public interest that it comes within the field of public regulation and, as such, is a public utility within the broad meaning of the term.

This court has not heretofore had occasion to pass on this question, probably because the FCC has pre-empted the field in the regulation of radio broadcasting stations and, therefore, this state has not found it necessary to subject this industry to utility regulation. It is, however, well established in the decisions of our federal courts that the public interest is so directly affected in the business of radio broadcasting operations that such business is, in a [525]*525sense, a public utility necessarily subject to government regulation and controls.

This was also recognized by the United States Congress in the enactment of the Federal Communications Act of 1934, as amended, 47 U.S.C.A. § 303, p. 77. The enactment is predicated upon public convenience, interest, use and necessity, as required, and enumerates the powers and duties of the FCC in eighteen specific sections. For brevity, we quote in part:

“ (a) Classify radio stations;
“(b) Prescribe the nature of the service to be rendered by each class of licensed stations and each station within any class;
“(c) Assign bands of frequencies to the various classes of stations, and assign frequencies for each individual station and determine the power which each station shall use and the time during which it may operate;
“ (d) Determine the location of classes of stations or individual stations;
“(e) Regulate the kind of apparatus to be used with respect to its external effects and the purity and sharpness of the emissions from each station and from the apparatus therein;
“(f) Make such regulations not inconsistent with law as it may deem necessary to prevent interference between stations and to carry out the provisions of this chapter: Provided, however, That changes in the frequencies, authorized power, or in the times of operation of any station, shall not be made without the consent of the station licensee unless, after a public hearing, the Commission shall determine that such changes will promote public convenience or interest or will serve public necessity, or the provisions of this chapter will be more fully complied with; U
“(h) Have authority to establish areas or zones to be served by any station;
“(i) Have authority to make special regulations applicable to radio stations engaged in chain broadcasting;
“ (j) Have authority to make general rules and regulations requiring stations to keep such records of programs, transmissions of energy, communications, or signals as it may deem desirable;
[526]*526“(o) Have authority to designate call letters of all stations;

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State Ex Rel. Pruzan v. Redman
374 P.2d 1002 (Washington Supreme Court, 1962)

Cite This Page — Counsel Stack

Bluebook (online)
374 P.2d 1002, 60 Wash. 2d 521, 1962 Wash. LEXIS 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-pruzan-v-redman-wash-1962.