# Pearson v. Evans > Washington Supreme Court · January 16, 1958 · 51 Wash. 2d 574 URL: https://www.frixlaw.com/law-library/cases/9563726 ## Case - **Full name:** Harry Pearson, Appellant, v. D. L. Evans, as King County Engineer, Defendant, William T. Waggoner, Respondent - **Court:** Washington Supreme Court - **Decided:** January 16, 1958 - **Citations:** 51 Wash. 2d 574; 320 P.2d 300; 1958 Wash. LEXIS 472 - **Precedential status:** Published - **Opinion:** Dissent by Finley - **Judges:** Mallery, Hill, Finley - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9563726 ## Opinion text Finley, J. (dissenting) — The operating principle of modern zoning regulations is in some respects the antithesis of the rugged individualism of pioneer, frontier times. This is particularly true in the sense that the latter principle permitted interference with a person’s right to use his land as he saw fit only in clear cases of nuisance or downright community necessity. But conceding that point does not mean that zoning should be judicially suspect, deprecated, and disavowed by the courts as “new-fangled.” It is relatively new. But it does not necessarily follow that the purposes and the results of modern zoning are to be condemned as undesirable and ultra vires et contra pacem regis. The pioneer, frontier, concept of land use was understandable in the context of its time. However, with the changes in the modern world wrought by urbanization and industrialization, the same democratic principles and con *578 siderations which then supported that concept of land use now support modern zoning. It certainly merits objective evaluation through judicial understanding and tolerance. After an examination of numerous cases involving the eradication of nonconforming uses under modern zoning regulations, one writer had this to say: “One gets, definitely, the impression from some of the cases, that judges get their dander up and fight to protect misfit nonconforming uses which they would eradicate forthwith if there were no zoning.” Judicial Zoning Through Recent Nuisance Cases, 1955 Wisconsin L. Rev. 440-457. If citizens decide, through their normal legislative processes, that they want zoning, the courts should strive to enforce the spirit as well as the clearly defined letter of the ensuing zoning regulations. The majority opinion expresses the view that the zoning resolution or ordinance here under consideration “is unambiguous and needs no court interpretation to ascertain its meaning and intent.” Furthermore, it is said that appellant Pearson’s contention is that the spirit of the zoning law would be violated by the issuance of a permit and by the construction of a building as contemplated by respondent Waggoner. I agree with the majority that the applicable provisions of the zoning ordinance seem to be unambiguous. However, to me, the meaning of the ordinance is directly the opposite of that attributed to it by the majority. Thus it could be that one or perhaps both viewpoints involve interpretation of the ordinance. I do not agree with the majority that appellant Pearson is merely contending that the spirit of the provisions of the zoning ordinance would be violated. I think his contention is that the letter as well as the spirit of the zoning provisions prohibits the construction of the building contemplated by Mr. Waggoner. The properties of appellant Pearson and of respondent Waggoner are located within an area designated as R-6 Residential Single-Family District. *579 Section 2.05 of the King county zoning code defines a single-family dwelling unit as follows: “A building containing but one kitchen, designed and/or used to house not more than one family, including all necessary household employees of such family.” Section 2.08 of the King county zoning code defines a private garage or boat house as follows: “An accessory building or an accessory portion of the main building designed and/or used only for shelter or storage of vehicles, boats, except airplanes, owned or operated by the occupants of the main building.” (Italics mine.) Section 2.02 of the King county zoning code defines an accessory use in the following language: “A use customarily incidental and accessory to the principal use of a lot or a building or other structure located upon the same lot.” (Italics mine.) Paraphrasing the latter code provision, an accessory use is clearly defined as one customarily incidental and accessory to the principal use of a lot or a building or other structure. The record in this case shows that the building will have a storage room, eleven by seventeen feet, where spare engines will be kept. There will be two electric hoists, ostensibly for lifting the hydroplanes and for interchanging motors in them. Another nineteen-by-fourteen storage room is available. The testimony is not clear as to whether it will be used to keep spare motor parts and tools. In any event, it should be fairly obvious that the structure contemplated by Mr. Waggoner will be used for not only the shelter and storage, but for maintenance work of perhaps varying degree as to one or two large, unlimited type, hydroplane racing boats. Approximately one fifth of the area, or nine hundred of the forty-two hundred square feet of the structure, will be used for living quarters. The testimony is not clear whether the living quarters will be occupied by Mr. Waggoner or by the crew chief in charge of maintenance work as to the hydroplanes. Assuming that approximately one fifth of the structure will be occupied by Mr. Waggoner during the summer rac *580 ing season, I simply cannot comprehend how the contemplated use of the remaining four fifths of the structure can be said to be customarily incidental and accessory to a single-family dwelling unit. I believe that by the insertion of the word, customarily, the framers of the zoning ordinance were attempting to make certain that the words, incidental to and accessory to, should be given their ordinary, everyday meaning. I do not believe the majority opinion complies with that intention. It takes more than the action of one property owner (Mr. Waggoner) to make something customary. If it is the predominant sentiment in Seattle, particularly of property owners in the Lake Washington area, that the lake and land bordering on it may be utilized in a manner to encourage and develop outstanding hydroplane racing, there is certainly nothing wrong in that. But the ordinance should be revised accordingly. Appellant conceded, in argument, that, if Mr. Waggoner constructed and maintained a dwelling house of the usual variety on his land, no objection could be made under the zoning laws if Waggoner then constructed a boat house for his hydroplanes. But a boat house for shelter, storage, and repair of unlimited racing hydroplanes certainly is not customarily incidental and accessory to a one-family dwelling; and this court is not bound by the interpretation given the ordinance by one property owner, even if he is the plaintiff in this action. Now, if the contemplated use violates the zoning ordinance, is the injunctive relief he seeks available to the plaintiff? In Park v. Stolzheise (1946), 24 Wn. (2d) 781, 167 P. (2d) 412 , this court allowed such relief. In the course of that opinion the court said: “It is now generally held by the courts in this country that a property owner may pursue the remedy of injunction against the violation of a zoning ordinance, upon a showing of special damages to him by way of diminution in value of his property resulting from the violation of the ordinance. Notes, 129 A. L. R. (1940) 885, where the cases are collected.” *581 This principle was accepted in Desimone v. Seattle (1950), 35 Wn. (2d) 579, 213 P. (2d) 948 , in which case the court held that the adjacent landowner had failed to establish any special damage to his property. For the availability of injunctive relief by adjoining property owners in other jurisdictions see: Meyer v. Seifert (1949), 216 Ark. 293 , 225 S. W. (2d) 4 ; Hopkins v. MacCulloch (1939), 35 Cal. App. (2d) 442, 95 P. (2d) 950 ; Zimmerman v. O’Meara (1932), 215 Iowa 1140 , 245 N. W. 715 ; Lowry v. City of Mankato (1950), 231 Minn. 108 , 42 N. W. (2d) 553 ; Taylor v. Schlemmer (1944), 353 Mo. 687 , 183 S. W. (2d) 913 ; Momeier v. John McAlister, Inc. (1943), 203 S. C. 353, 27 S. E. (2d) 504 ; Graves v. Johnson (1954), 75 S. D. 261, 63 N. W. (2d) 341 ; Bouchard v. Zetley (1928), 196 Wis. 635 , 220 N. W. 209 ; and see, also, McQuillin, Municipal Corporations (3d ed.), § 25.351. I do not think we have to postpone closing the barn door until after the horse has escaped. In connection with the matter of injunctive relief in this case, it is significant that the zoning ordinance itself provides for preventive action; i. e., enjoinment of construction in violation of the code, through action by the prosecuting attorney. Accordingly, the appellant had available the alternative course of seeking a writ of mandamus requiring the prosecuting attorney to bring the action for injunction. McQuillin, Municipal Corporations (3d. ed.), § 25.351. If he had followed such course, the plaintiff would not have been required to show special damages to his property, as the ordinance itself declares use of property contrary to the zoning regulations to be unlawful and a public nuisance. I believe the judgment should be reversed, and the cause remanded for further and appropriate proceedings. Ott and Foster, JJ., concur with Finley, J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9563726. Public record. Not legal advice.