Bidwell v. City of Bellevue

• Decision Date: 13 April 1992
• Docket Number: No. 29120-3-I
• Citation: Bidwell v. City of Bellevue, 827 P.2d 339, 65 Wn.App. 43 (Wash. App. 1992)
• Parties: Geoffrey BIDWELL and Dorothy Scheppke, Appellants, v. CITY OF BELLEVUE, a municipal corporation, Respondent, and Bellevue Convention Center Authority, a public corporation, Intervenor.
• Court: Washington Court of Appeals

Page 43

65 Wn.App. 43

827 P.2d 339

Geoffrey BIDWELL and Dorothy Scheppke, Appellants, v. CITY OF BELLEVUE, a municipal corporation, Respondent and Bellevue Convention Center Authority, a public corporation Intervenor.

No. 29120-3-I.

Court of Appeals of Washington Division 1.

April 13, 1992.

J. Richard Aramburu, Seattle, for appellants.

Richard L. Andrews, City Atty., and David E. Kahn, Asst. City Atty., Bellevue, Paul J. Lawrence, Alison K. Campbell, and Preston Thorgrimson Shidler Gates & Ellis, Seattle, for respondent.

BAKER, Judge.

Geoffrey Bidwell and Dorothy Scheppke sued the City of Bellevue (City) to compel it to place an initiative on the ballot concerning the financing of the Bellevue Convention Center. They appeal from a summary judgment dismissing their action.

The initiative would require the Bellevue Convention Center Authority (BCCA) to obtain voter approval before issuing negotiable bonds or notes to finance construction of the convention center.

We affirm.

FACTUAL BACKGROUND

The facts are essentially undisputed. The City appointed a citizen technical committee in 1988 to study the feasibility of constructing a convention center. In February 1989 the City completed an environmental impact statement and held a public hearing on the proposed project.

Shortly thereafter, the city council adopted resolution 5114, which established the scope of the convention center project and announced the council's intent to proceed with the design, financing, and construction of the center. The resolution further declared the council's intent to create a public corporation to construct and operate the convention center. In April 1989 the city manager was authorized to acquire the necessary property rights for the convention center, execute a contract for professional services, and select an architectural firm. In November 1989 a public meeting was held on the operation, financing, and site selection aspects of the project.

In December 1989 the council adopted four ordinances which essentially established the framework for implementation of the City's plans to construct a convention center: ordinance 4092 created the BCCA, a public corporation; ordinance 4093 authorized the city manager to execute a design, development, construction, financing, and operating agreement with the BCCA; ordinance 4094 approved a convention center backup finance plan; and ordinance 4097 authorized the city manager to execute lease agreements with the BCCA. BCCA's charter specifically authorized it to issue negotiable bonds and notes.

Under the lease agreements authorized by the city council, the City will lease the convention center site from the property owners and then sublease it to the BCCA. Upon completion of construction, the BCCA will lease the convention center back to the City. The proceeds of the City's hotel/motel tax will be used to make lease payments.

Initiative 5 was filed with the city clerk in December 1990. The initiative proposed an amendment to the BCCA charter, requiring voter approval before the BCCA is authorized to issue negotiable bonds and notes. The city attorney advised the council that initiative 5 was not a proper subject for an initiative because it involved administrative acts; accordingly, the council passed a resolution refusing to adopt the initiative or place it on the ballot. In February 1991 appellants brought this action to compel the city council to place the initiative on the ballot.

The trial court granted the City's and BCCA's motion for summary judgment, concluding that the proposed initiative exceeds the scope of the initiative power.

I.

The power of the people to adopt legislation directly through the initiative process is limited to actions that are legislative in nature. Ruano v. Spellman, 81 Wash.2d 820, 823, 505 P.2d 447 (1973). In this context, an act is characterized as legislative or administrative according to the following test:

Actions relating to subjects of a permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative....

The test of what is a legislative and what is an administrative proposition, with respect to the initiative or referendum, has further been said to be whether the proposition is one to make new law or to execute law already in existence. The power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.

Seattle Bldg. & Constr. Trades Coun. v. Seattle, 94 Wash.2d 740, 748, 620 P.2d 82 (1980); see also Heider v. Seattle, 100 Wash.2d 874, 675 P.2d 597 (1984); Citizens v. Spokane, 99 Wash.2d 339, 662 P.2d 845 (1983); Ballasiotes v. Gardner, 97 Wash.2d 191, 642 P.2d 397 (1982); Leonard v. Bothell, 87 Wash.2d 847, 557 P.2d 1306 (1976); Ruano, 81 Wash.2d at 823, 505 P.2d 447.

Appellants argue that the City's refusal to permit a vote on the initiative on grounds that only administrative acts remain was improper because (1) the City is not irrevocably committed to the construction of the convention center; and (2) the City continues to exercise legislative power over the project.

Appellants' first argument is based on Paget v. Logan, 78 Wash.2d 349, 474 P.2d 247 (1970), in which the Supreme Court ruled that an initiative concerning the site selection process for the Kingdome involved legislative, not administrative, functions and therefore was within the scope of the initiative process. The court characterized the site selection function as legislative because (1) under the applicable statute, the county's "governing body" was vested with the ultimate authority over site selection; and (2) the selection of a site for a public stadium involves "significant and inherently legislative problems" concerning traffic, parking, public transportation, and public services and utilities. Paget, 78 Wash.2d at 357, 474 P.2d 247.

In response to the argument that subjecting the site selection process to the initiative power would impair the efficiency of government, the court stated:

[I]n the instant case development of the proposed project had not proceeded to a point where the county had become irretrievably bound to the proposed site. Irrevocable preparations for building on the recommended site had not commenced.

Paget v. Logan, 78 Wash.2d at 359, 474 P.2d 247. To the extent that the Paget court relied on the "irrevocable commitment" rationale in determining whether the site selection function was legislative or administrative, the Supreme Court has departed from that rationale in a line of subsequent cases. Heider v. Seattle, 100 Wash.2d 874, 675 P.2d 597 (1984); Citizens v. Spokane, 99 Wash.2d 339, 662 P.2d 845 (1983); Ballasiotes v. Gardner, 97 Wash.2d 191, 642 P.2d 397 (1982); Seattle Bldg. & Constr Trades Coun. v. Seattle, 94 Wash.2d 740, 620 P.2d 82 (1980); Leonard v. Bothell, 87 Wash.2d 847, 557 P.2d 1306 (1976); Ruano v. Spellman, 81 Wash.2d 820, 505 P.2d 447 (1973). Therefore, appellants' argument that the City is not irrevocably committed to the construction of the convention center has little bearing on the distinction between legislative and administrative acts under Washington case law.

Appellants further assert that the City later amended the ordinances adopted in December 1989 and that these subsequent amendments were legislative acts. Appellants argue that the City thus demonstrably continues to exercise legislative authority over the project even after submission of the initiative. The respondents, on the other hand, assert that all major policy decisions concerning the proposed convention center had been made by December 1989, and that actions taken thereafter were in furtherance of existing policy and therefore were administrative. We agree with respondents' argument.

By December 1989 the council had established the essential framework for implementation of the City's plans to construct a convention center. In a series of ordinances, the council authorized creation of the BCCA, authorized the city manager to execute an operating agreement with the BCCA, and approved a backup finance plan. The backup finance plan was the product of a task force formed by the City...