(dissenting) — I would affirm. If unreasonable in either concept or application, the implementation of zoning restrictions can result in an unconstitutional taking of private property for a public purpose without just compensation.
It is a general rule that zoning laws cannot render private property valueless. Hence, if the application of a zoning law has the effect of completely depriving an owner of the beneficial use of his property by precluding all practical uses or the only use to which it is reasonably adapted, the law is objectionable. ... a zoning ordinance may be valid in its general aspects, yet in its application to a particular piece of property it may be so clearly arbitrary and unreasonable as to result in confiscation in violation of the constitutional rights of the owner.
(Footnotes omitted.) 8 E. McQuillin, The Law of Municipal Corporations § 25.45 (3d ed. rev. vol. 1965).
Medina’s Comprehensive Plan honors “grandfather” rights and is, therefore, not unreasonable in concept.
1. It permits the continuance of nonconforming uses which predate its adoption. City of Medina ordinance No. 159 § 5-1.14.
2. With reasonable limitations, it permits the construction of nonconforming improvements “without the necessity of a variance” if the parcel of land “would have qualified as a building site under minimum lot size and frontage regulations applicable at the time of its acquisition . . .”
City of Medina ordinance No. 159 § 5-1.15.
3. It provides for the granting of variances “in harmony with the general purpose and intent of [the] ordinance” “[w]here unnecessary hardships and practical difficulties are created for the landowner.” City of Medina ordinance No. 159 § 1-21.05.
*508The issue presented by this appeal is whether the Board of Adjustment arbitrarily and unreasonably applied Medina’s zoning ordinance in denying the Lewises’ application for a variance.
The expressly stated purpose of the zoning ordinance provisions which empower Medina’s Board of Adjustment to grant variances is to insure that “substantial justice [be] done.” But the Board’s power to grant variances is not unlimited. As pointed out by the majority, before granting a variance, the Board is required to make three findings of fact. They are that:
1. Without a variance, “the land . . . cannot be reasonably used, . . .” City of Medina ordinance No. 159 § 1-21.05;
2. The plight of the owner is due to unique circumstances which . . . are not the result of the owner’s action.” City of Medina ordinance No. 159 § 1-21.05;
3. The contemplated use is in conformity with “the essential use provisions of the land use district in which the land ... is located.” City of Medina ordinance No. 159 § 1-21.05.
It is not disputed (1) that the variance sought by the Lewises is for a use in conformity with the zoning of the district in which the land is located, (2) that unless granted a variance, the Lewises’ land cannot be reasonably used, and (3) that the sole basis for the Board’s denial of a variance was its finding that the Lewises’ “hardship” was self-inflicted. Undisputed evidence supports the trial judge’s findings that:
History Of Lot: The property is the third parcel of land remaining from a larger triangularly-shaped parcel of land which was acquired by the deceased father of the plaintiffs in 1941, which then consisted of approximately 31,000 square feet, lying between the two streets. Of the large triangle, the first parcel which was sold was prior to 1948, lying at the widest point between the two streets to the north, leaving the second parcel and the subject lot remaining to the south. The parents of the plaintiffs then built a residence on the second parcel, which after the, *509death of the deceased father was sold by the widow, Melita G. Lewis, to a party by the name of Neuberger, in 1952, leaving the subject lot with the common boundary between it and the lot and residence sold. The widow then made application for the building permit from King County upon that application and set of plans. The building permit secured by the deceased, Melita G. Lewis, in 1952 was not acted upon, and no improvements have been made on the lot.
Finding of fact No. 5.
Lot Area: The area of the lot is 5,150 square feet, plus or minus 100 feet, that was created in 1948 after the deceased mother of the plaintiffs, individually and in liquidation of her deceased husband’s estate, sold the adjoining parcel to the north of the subject lot. In 1948 the King County Zoning Resolution provided a minimum area of 6,000 square feet of a lot for building a residence. The deceased mother did not create the lot for speculation purposes in hopes of securing a variance 25 years ago from the minimum requirement at that time. Instead, application was made to King County for a building permit for a residence and that that [sic] permit was issued by mistake without an application being required for variance from the minimum area requirement, which at that time was believed to not be necessary, for it was mistakenly believed that the area was 6,000 square feet or more. . . .
. . . The plot plan submitted to King County for which it issued a permit complied with all setback requirements of the Resolution of King County. Except for the minimum area requirement and the encroachment, the plot plan was in compliance with the zoning resolution of King County.
Finding of fact No. 8.
In his memorandum decision, the trial judge said:
The only evidence in the case shows conclusively that construction of the house planned by the plaintiffs will do no damage to the neighbors and will not be inconsistent with the public health, safety and welfare of Medina as a whole. Cities may lawfully control lot sizes for building purposes and may lawfully provide for a 16,000 square feet minimum where reasonable; but this is a *510unique situation. Plaintiffs’ small building site is isolated from neighbors by streets except on the back where adequate space is provided in accordance with the ordinance.
The lot size presents no potential harm to the city in fire protection, in providing for utilities, (water, sewers, etc.), or even esthetics. If this house were to be jammed in between other houses on a lot which would in any way vary the general plan of the city another situation would be presented. The city has offered no evidence that the granting of a variance would be prejudicial to the public health, safety and welfare of a neighbor or other residents of the city unless it be that it is not in harmony with the spirit of the zoning ordinance and plan. This contention might have some merit in many cases, but in this particular situation the use of this lot for building a house has no adverse effect on the general plan or spirit of Medina’s ordinance, because its location is unique and adjacent to streets rather than neighbors. The general plan for Medina is to protect the city as a residential community with large lots, to encourage construction of valuable improvements and add to the amenities which make life pleasant.
This vague concept of spirit and harmony is outweighed by the enormous damage to the plaintiffs in making this lot valueless except to the next door neighbor and there is no rational reason why he should want it. I am convinced therefore that some showing must be made that the denial of the variance would serve the public health, safety and welfare of the inhabitants of Medina. No such showing has been made.
Were plaintiffs and their predecessors the authors of their trouble and therefore cannot secure a variance? I think not. It is true that at the time plaintiffs’ parents sold portions of their property in 1948 or thereabouts the King County Ordinance provided minimum area of 6,000 square feet. The retained property is more than 5/6ths of that area and there is every reason to believe that King County would have permitted a proper building to be erected. The granting of the building permit shows that conclusively, albeit a variance should have been secured at that time in view of the mistake in believing the lot to exceed 6,000 square feet1. It would be unjust to conclude that this was an unbuildable lot at the time of the sale of portions of the larger lot in 1948.
*511I do not agree with the majority’s conclusion that the subdivision of their property by the Lewises prior to the enactment of Medina’s zoning ordinance was a self-inflicted “plight” which “foreclosed” the granting of a variance. When the Lewises subdivided their property in 1948, they could not know that in 1964 Medina would require a 16,-000-square-foot minimum for a residential lot. They were bound to know only that King County zoning required a 6,000-square-foot minimum. But, as the trial judge concluded, the substandard lot was not unbuildable under the county- zoning ordinances. In fact, a building permit was issued. The Lewises did not deliberately attempt to circumvent the county zoning restrictions. The creation of a substandard parcel was an inadvertent mistake.
The self-inflicted “plight” of the Lewises was not the creation of a lot which was per se unbuildable. It was the creation of a lot which would require a variance from King County. An application for a variance would have been heard on its merits. The probabilities are that it would have been granted.
The Lewises, therefore, had a constitutionally guaranteed “grandfather” property right which Medina was bound to recognize. It was the right to have their request for a variance considered on its merits. To deny them the right to a consideration of the merits through application of restrictions not adopted until 1964 was arbitrary and capricious.
In view of the minimal impact upon Medina’s comprehensive plan and because of the extreme hardship suffered by the Lewises, the Board’s denial of a variance was unreasonable and arbitrary. The Board did not fulfill its obligation to afford the Lewises “substantial justice.”
Petition for rehearing denied September 29, 1975.
Appealed to Supreme Court October 6, 1975.