State v. City of Bellingham

605 P.2d 788, 25 Wash. App. 33, 1979 Wash. App. LEXIS 2840
CourtCourt of Appeals of Washington
DecidedDecember 24, 1979
Docket6727-3-I
StatusPublished
Cited by4 cases

This text of 605 P.2d 788 (State v. City of Bellingham) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. City of Bellingham, 605 P.2d 788, 25 Wash. App. 33, 1979 Wash. App. LEXIS 2840 (Wash. Ct. App. 1979).

Opinions

Ringold, J.

This is an appeal from a decision of the City of Bellingham Board of Adjustment (Board) denying a conditional use permit for a children's residence facility to the Catholic Family and Children's Services (CFCS). We hold that the Board erred in requiring a conditional use permit and reverse.

In letters written October 8,1974, and February 28,1975, to the Bellingham planning director, CFCS outlined the anticipated program of a proposed children's residence facility to be located in a Residential Low Density One (RL-1) use district under the Bellingham zoning code. [35]*35Believing that the facility, would be licensed as a foster home, the planning director determined that it would therefore be a permitted use as a "single family house" in the proposed location. CFCS obtained the necessary building permits and the facility was constructed and occupied.

On January 5,1976, CFCS obtained a group home license to operate the facility from the State Department of Social and Health Services (DSHS). CFCS chose to obtain that license, rather than a foster home license for which the facility also qualified, due to the different types of state funding available.

Some time later, a group of neighbors motivated by instances of misbehavior by the children residing at the CFCS facility sought an inquiry into its status. A hearing before the Board was held at which CFCS and the neighborhood group outlined their positions. The Board declared the facility to be a juvenile home requiring a conditional use permit under the zoning code. The Board made no findings of fact or conclusions of law, but based its decision on the desire to have some control over the facility and give the neighbors some recourse against it through the conditional use permit process.

The CFCS applied for a conditional use permit, which the Board denied. The CFCS appealed by writ of certiorari to the superior court. The court concluded that the type of DSHS license obtained was the determinative factor in distinguishing between single family houses with foster children and juvenile homes under the Bellingham zoning code and affirmed the Board's denial. The CFCS then brought this appeal.

The fundamental principles governing the construction of zoning ordinances were stated in Wiggers v. Skagit County, 23 Wn. App. 207, 212, 596 P.2d 1345 (1979):

Zoning ordinances should be given a reasonable construction and application in order to serve their purpose and scope. State ex rel. Edmond Meany Hotel, Inc. v. [36]*36Seattle, 66 Wn.2d 329, 402 P.2d 486 (1965). Zoning ordinances are to be construed as a whole and any unreasonable construction must be rejected. Bartz v. Board of Adjustment, 80 Wn.2d 209, 492 P.2d 1374 (1972).
[Zjoning 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 Min. & Dev. Corp. v. Auburn, 82 Wn.2d 321, 326, 510 P.2d 647 (1973). See Dando v. King County, 75 Wn.2d 598, 452 P.2d 955 (1969). The primary objective in interpreting a zoning ordinance is to ascertain the legislative intent. East v. King County, 22 Wn. App. 247, 589 P.2d 805 (1978). Undefined words in an ordinance will be given their plain and ordinary meaning, East v. King County, supra, State v. Work, 75 Wn.2d 204, 449 P.2d 806 (1969).

With the foregoing principles in mind we turn to the ultimate question here, which we must determine as a matter of law; that is, whether the use to which CFCS put the property is permitted by the Bellingham zoning code. Mercer Island v. Kaltenbach, 60 Wn.2d 105, 371 P.2d 1009 (1962); Mercer Island v. Steinmann, 9 Wn. App. 479, 513 P.2d 80 (1973). In our view, both the Board and the trial court erroneously relied on matters other than the use to which the property was being put in deciding that a conditional use permit was required. Neither the desire of others to have some control over the CFCS property nor the type of DSHS license obtained affected the actual use of the property which, so far as the record shows, has remained unchanged from its first occupancy by CFCS.

The Bellingham zoning code lists "single family house" as a permitted use and "juvenile homes" as a conditional use in an RL-1 use district. Bellingham Municipal Code § 20.06.102(b)(1), § 20.06.102(d)(10). The latter use requires a special permit. Bellingham Municipal Code § 20.06.040.

[37]*37The zoning code defines "juvenile home" as "an establishment located in a residential-type building and used as a supervised group home for juveniles under the age of 18 years." Bellingham Municipal Code § 20.06.047. The code does not define "single family house," but "family" is defined as

one or more persons each related to the other by blood, marriage, or adoption living together in a single dwelling unit. A "family" may include foster children, domestic servants and no more than two guests residing within the dwelling unit.

Bellingham Municipal Code § 20.06.011. The term "foster children" is also undefined, but trader the general dictionary definition, to which we may refer in ascertaining the common meaning of statutory language, Garrison v. State Nursing Bd., 87 Wn.2d 195, 550 P.2d 7 (1976), "foster" children are those "receiving, or sharing nourishment, upbringing, or parental care though not related by blood or legal ties." Webster's Third New International Dictionary (1969). See also In re Norman's Estate, 209 Minn. 19, 295 N.W. 63 (1940).

It appears from the record that the CFCS facility is a residential-type building used as a home for juveniles trader the age of 18 years who are supervised by a live-in married couple, among others.1 It therefore fits the zoning code's definition of a juvenile home. Bellingham Municipal Code § 20.06.047. It further appears that the children residing at the CFCS house receive and share nourishment, [38]*38upbringing and parental care. They are therefore foster children and, with the married couple residing there, constitute a family for purposes of the zoning code. Bellingham Municipal Code § 20.06.011. The facility thus qualifies under the zoning code as a single family house as well.

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Bluebook (online)
605 P.2d 788, 25 Wash. App. 33, 1979 Wash. App. LEXIS 2840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-city-of-bellingham-washctapp-1979.