State Ex Rel. Wenatchee Congregation of Jehovah's Witnesses v. City of Wenatchee

Mallery, J.

(concurring specially) — While the validity of zoning ordinances is no longer the subject of controversy when they conform to constitutional requirements, they cannot confer legislative powers upon administrative officers without prescribing adequate legislative standards. In State ex rel. Ogden v. Bellevue, 45 Wn. (2d) 492, 275 P. (2d) 899, we said:

*387“A property owner has a vested right to use his property under the terms of the zoning ordinance applicable thereto. State ex rel. Hardy v. Superior Court, 155 Wash. 244, 284 Pac. 93. A building or use permit must issue as a matter of right upon compliance with the ordinance. 9 Am. Jur. 203, § 7. The discretion permissible in- zoning matters is that which is exercised in adopting the zone classifications with the terms, standards, and requirements pertinent thereto, all of which must be by general ordinance applicable to all persons alike. The acts of administering a zoning ordinance do not go back to the questions of policy and discretion which were settled at the time of the adoption of the ordinance. Administrative authorities are properly concerned with questions of compliance with the ordinance, not with its wisdom. To subject individuals to questions of policy in administrative matters would be unconstitutional. Art. I, § 12, of the constitution of the state of Washington, provides:
“ ‘No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.’ ”

Section IV of the zoning ordinance in question provides:

“In an R-l, Residential District no building shall be used, and no ■ building shall hereafter, be erected or structurally altered, unless otherwise provided in this ordinance, except for one or more of the following uses: . . .
“5. Public schools, parochial schools and churches if approved by the Planning Commission.” (Italics mine.)

To give effect to the italicized phrase would render the ordinance unconstitutional, since no proper legislative standards are supplied for the guidance of the planning commission.

We are required to give a statute such an interpretation as will make it constitutional when it is possible to do so. It can be done in the instant case by considering the italicized phrase as being surplusage.

This interpretation of the statute entitles appellant to the relief sought.