(dissenting) — -I am unable to so easily reject the findings of fact made ánd the conclusions reached by the trial judge as is done in the majority opinion. We must not overlook the fact that the trial judge had served in that capacity for many years and had long been a member of this court. By agreement of the parties, he visited the premises involved during the trial. He took the case under advisement and wrote an opinion in which he discussed the evidence and cited applicable law on the subject being considered.
Based upon his view of the evidence, the trial judge found the facts to be that, prior to the passage of the zoning ordinance, the dwelling of respondent had-been used as a rooming house and for student social functions like those carried on in sorority and fraternity houses; that such uses of the property both prior to and subsequent to the passage of the zoning ordinance established a nonconforming use thereof; that no change in use of the property was contemplated except a change in the denomination of the home from a “rooming house” to a “fraternity house”; that it is proposed to use the property as a place of residence for college students, all of whom are members of one fraternity, and to denominate the same as a “fraternity house”; and that the proposed use as such will be substantially the same as the former use and will not be injurious to public health, morals, safety, or general welfare. The court concluded that the action of the city prohibiting the use of the property as and for a fraternity house was not valid.
I recognize that, in carrying out the general policy of a zoning ordinance, it is desirable that nonconforming property should be so adjusted that it will be conforming in character, and that one of the many methods adopted to achieve such result, particularly in the case of a residence zone, is to so closely and technically défine the particular nonconforming use that it is impossible to make even an occupancy change in the use of the property. However, *303official authorities must give consideration to local situations and conditions when determining whether any proposed use of a property, such as an old-style residence that has been converted into a rooming house and is in an area adjacent to a growing college, would be violative of a zoning ordinance.
A college area and at least a substantial part of the adjacent or nearby area have their early growth in the construction of college buildings, private homes, and residences. Later come such business and commercial activities as cater mainly to student and immediate local trade, as well as the boarding, rooming, and apartment houses, also sorority and fraternity houses. Some of the larger dwelling houses serve their purpose as such and are then used to accommodate students and become their places of residence while attending college; then comes the residential zoning ordinance with its constitutionally required nonconforming provisions. Here is a fruitful field for a pressure group of residence owners aided by pliant public authority to obstruct the nonconforming owner in the use of his property under the claim that he is making such a change or increase in the nonconforming use as to constitute a violation of the zoning ordinance.
I am quite satisfied that the trial judge, when he visited and inspected the property of respondent, must have been cognizant of the evolution of the college and zoning areas and took that'factor into consideration when concluding respondent’s use of her dwelling as a rooming house (permissible under the ordinance) would not be anything substantially different in substance if it were used as a fraternity house in the manner disclosed by the evidence submitted to him. I can readily see how, with such a background and the evidence submitted, the trial judge had no difficulty in arriving at the conclusion that the use of the property as and for a fraternity house and home for college students would not be in violation of the ordinance, and that, by its prohibitory action, the city invaded respondent’s constitutional rights.
*304Each case of this character is surrounded by so many conditions and-circumstances peculiar to it that a court cannot be safely guided by excerpts taken from opinions of judges out of . their settings'. _ Such expressions may have been apt in the light of the. situation then before the court, but they can be misleading in other situations and circumstances; they can be helpful in so far as they make reference to rules and principles of law which are generally .used and applied in connection with the subject zoning of property..
I have found some assistance in the case of State ex rel. Modern Lbr. & Millwork Co. v. MacDuff, 161 Wash. 600, 297 Pac. 733, and the cases cited in the opinion, in my approach to a determination of whether the use of respondent’s property as and for the kind of a fraternity house proposed would be in violation, of the ordinance. I gather from them that an owner of nonconforming property may not be interfered with if he desires to use it in a somewhat different way than it was used when the ordinance was enacted if such use is not substantially and essentially a departure from the character of the nonconforming use excepted from the operation of such ordinance, the test being whether the property retains substantially the character of use it had'at the time of the enactment of the zoning ordinance.
I am in accord with the findings and. conclusions of the trial judge that the foregoing test will be met if respondent’s property is used as and for a fraternity house in the manner disclosed by the evidence submitted and with the judgment entered.
The judgment should be affirmed.