stating that “’appurtenant’ has a clear and long established meaning” when interpreting a covenant that allowed, as appurtenant to a dwelling house, “a private garage, garden house, . . . or other private appurtenant outbuildings or structures”
How later courts described this case
- stating that “’appurtenant’ has a clear and long established meaning” when interpreting a covenant that allowed, as appurtenant to a dwelling house, “a private garage, garden house, . . . or other private appurtenant outbuildings or structures”
- holding racially restrictive covenants unenforceable and in violation of the United States Constitution even though suit was brought over 60 years after the covenants attached to the property
- "`the ultimate burden and responsibility for planning, harmonizing the planning goals of [the GMA], and implementing a county's or city's future rests with that community.'" (alteration in original) (quoting RCW 36.70A.3201)
- the GMA is a framework that guides local jurisdictions in the formation of comprehensive plans and development regulations
Written by the judges who cited it.
The opinion
¶47 Sanders, J.
(concurring) — While I agree with the majority in most respects I find the discussion of the city’s zoning regulations, which “call for a minimum density of four dwelling units per acre,” somewhat troubling. Majority at 130. Indeed, if the zoning regulations actually required a minimum of four houses per acre, see Shoreline Municipal Code 20.50.020, then I cannot understand how this restrictive covenant, which limits construction on this parcel of nearly one-and-one-half acres to a single dwelling, would not facially violate that public policy.
f 48 So too am I not convinced the planning manager’s affidavit about how she or her attorney would apply the municipal code is competent evidence. Rather this is a legal question to be determined by the language of the ordinance, if necessary aided by accepted norms of statutory construction.
¶49 Yet, this provision of the Shoreline Municipal Code appears somewhat problematic. Indeed the whole issue seems to revolve around a matrix referencing various “standards” to residential zone designations, e.g., R-4, R-6, etc. The line on the matrix relied upon by Viking references “min. density” under the standards column and “4 du/ac” under the R-4 and R-6 columns. I see no further explanation in the code enlightening the reader what this means or how it is to be applied in practice.
¶50 I take it to be the Viking position that this text must mean it should be able to develop the subject property with up to five or six residences, restrictive covenant notwithstanding. Yet Viking adds in its responsive brief:
*133 The City also properly recognizes that its minimum density requirements apply only when a property owner elects to develop its property. If owners of developed low-density properties, whether affected by covenants or not, make the voluntary choice not to develop, there is no occasion to require compliance with minimum density requirements.
Br. of Resp’t Viking Properties, Inc. at 39. While I admit the foregoing sounds reasonable, it must also be acknowledged that it conflicts with a possibly more literalist approach that property owners by virtue of the zoning code are forced to fully develop their property to meet “minimum density” requirements — a scenario quite inconsistent with the restrictive covenant at issue here.
|51 However I do believe there is another reasonable way to read the minimum density requirement, i.e., that it is hortative: or aspirational only. Were that not the case, I would think the city might be within its rights to refuse to issue permits for not less than five dwelling units on the subject property or find the property owner in violation of the land use code for not fully developing its property. But how that interpretation would advance the alleged public policy to maximize density is unclear since the owner might lack the resources or inclination to fully develop its property to the minimum density standard, choosing instead to build nothing at all. Indeed, if that were the intent of the city fathers, I would think that the consequences of underdevelopment would be spelled out, and not just left to the imagination.
¶52 There is one other consideration which prompts my conclusion that the minimum density requirement is simply hortative. Morin v. Johnson, 49 Wn.2d 275, 279 , 300 P.2d 569 (1956). 11 Here I would rely upon that rule of construction which provides that land use ordinances must *134 be strictly construed in favor of the property owner. I do not believe a minimum, as opposed to maximum, density requirement in any way favors the property owner except very indirectly in the aberrational situation we have here, where Viking is attempting to invalidate a restrictive covenant. But even here other adjacent and nearby property owners have a like property interest to maintain the viability of the covenant as does Viking to void it. So, on balance, the construction which favors the property owner also favors the validity of the density covenant.
¶53 I therefore concur.
It must also be remembered that zoning ordinances are in derogation of the common-law right of an owner to use private property so as to realize its highest utility. Such ordinances must be strictly construed in favor of property owners and should not be extended by implication to cases not clearly within their scope and purpose.
Morin, 49 Wn.2d at 279 .