4 Wn. App. 530, BENJAMIN ASIA et al., Appellants, v. THE CITY OF SEATTLE et al., Respondents
[No. 514-40933-1. Division One-Panel 2. Court of Appeals March 22, 1971.]
BENJAMIN ASIA et al., Appellants, v. THE CITY OF SEATTLE et al., Respondents.
[1] Eminent Domain-Zoning-Nonconforming Use-Discontinuance- Reduction in Value of Land. A municipal zoning ordinance discontinuing an existing nonconforming use of a portion of an owner's property and effecting a reduction in the value of the total parcel owned does not constitute an unconstitutional taking without cornpensation.
[2] Zoning-Nonconforming Use-Discontinuance-Standards. Preexisting nonconforming uses are not perpetual and may be discontinued. When determining whether a nonconforming use can be terminated the public welfare is to be considered, using as a measuring rod the objective of the zoning ordinance and all of the property within the particular use district. The court should consider the deprivation of the property right involved and the resulting hardship to the owner as balanced against the public benefit gained. [See Ann. 42 A.L.R.2d 1146; 58 Am. Jur., Zoning (1st ed. 146).]
Appeal from a judgment of the Superior Court for King County, No. 672174, Story Birdseye, J., entered January 15, 1969. Affirmed.
Action to review a zoning decision of a municipality. Plaintiffs appeal from a judgment in favor of the defendants.
Franco, Asia, Bensussen & Coe and Albert M. Franco, for appellants.
A. L. Newbould and Gordon F. Crandall, for respondents.
FARRIS, A.C.J. -
Appellants are owners of a parcel of real property in Seattle, 120 feet by 100 feet, at 1405-13 31st Avenue South, which they acquired in 1938. The property is located directly above the southerly tunnel leading from downtown Seattle to the Lacy v. Murrow Floating Bridge over Lake Washington. An advertising structure situated on the west 33 feet of said property is highly visible from the roadway approaching the tunnel from the west.
Appellant leased the west 33 feet of the parcel as a site for an advertising sign from 1958 until 1966 when the city ordered termination of its use for advertising purposes.
Mar. 1971] ASIA v. SEATTLE 531
4 Wn. App. 530, 482 P.2d 810
On June 24, 1957, the city adopted a comprehensive zoning ordinance (86300). The advertising sign was a legal nonconforming structure and use under the ordinance.
On May 29, 1962, ordinance 91201 amending section 5.33 of ordinance 86300 was approved. It was under this ordinance that the city acted in discontinuing the nonconforming use.
It is not disputed that the westerly 33 feet could be leased for $150 per month if a sign is permitted at the location. The westerly 33 feet are now used for no other purpose except for light, air and access to the two apartments and four stores that are located on the front of the parcel.
The authority of the city, in the reasonable exercise of its police power, to regulate land use through zoning is not in issue. Appellants allege that the application of the zoning ordinance to their property completely eliminated the economic use of the property without just compensation and was therefore unconstitutional in its application to them.
[1, 2] We agree with appellants' contention that the fortuitous enhancement of the value of the parcel (by the location of the highway and tunnel after appellants' purchase of the parcel) is not controlling here. If the parcel has economic value and this value was completely eliminated, the appellants are entitled to compensation. See Carlson v. Bellevue, 73 Wn.2d 41, 435 P.2d 957 (1968).
The trial court correctly considered the westerly 33 feet of the property as a part of the total parcel. Although the economic value of the total parcel was reduced by the zoning ordinance which eliminated the economic value of the westerly 33 feet of the parcel, the effect was to reduce but not eliminate the value of the total parcel. A similar stion was before the court in Seattle v. Martin, 54 Wn.2d 541, 342 P.2d 602 (1959) and State ex rel. Miller v. Cain, 40 Wn.2d 216, 242 P.2d 505 (1952).
Appellants did not have the right for all tune to use property as a site for an advertising structure. Preexisting nonconforming uses are not to be perpetual. The public
532 STATE v. DUPUY [Mar. 1971
4 Wn. App. 532, 482 P.2d 794
welfare must be considered, using as a measuring rod the Objectives of the zoning ordinance and all of the property within the particular use district.
Here the court considered the deprivation of the property right and the resulting hardship to the property owner and the public benefit obtained by enforcing the ordinance.
The record supports the trial court's determination. Affirmed.
JAMES and SWANSON, JJ., concur.