Buell v. City of Bremerton
| Decision Date | 20 April 1972 |
| Docket Number | No. 42259,42259 |
| Parties | Charles E. BUELL and Elizabeth A. Buell, his wife, Appellants, v. CITY OF BREMERTON, a municipal corporation under the laws of the State of Washington, et al., Respondents. |
| Court | Washington Supreme Court |
Charles E. Buell and his wife, representatives of other neighbors in a class action, appeal from a judgment which dismissed their petition for certiorari to review action of the City of Bremerton rezoning property adjacent to them from residential to commercial. The issues presented for this court's determination are whether the doctrine of laches prevents appellants from challenging the validity of a 1966 action rezoning a portion of the property; whether a potential benefit to a member of the planning commission accruing from the rezoning voids the subsequent actions of the city council in 1966 and 1971; and whether the rezoning, in 1971, of a portion of the property was illegal spot zoning.
We hold that the appellants are prevented by the doctrine of laches from challenging the 1966 rezone; that the 1971 rezone is void inasmuch as the appearance of fairness is not maintained by virtue of a potential benefit to one of the planning commission members; and that the 1971 rezone, if otherwise valid, would not have constituted illegal spot zoning.
The Buell home, which they purchased in 1954, is located approximately 400 feet from the rezoned property. The trial court found that, in 1957, 10 of the disputed 15 acres were zoned for commercial purposes by Kitsap County, and a number of small buildings were constructed on the site. On July 21, 1965, the property was annexed to Bremerton. A zoning ordinance was then adopted, zoning all annexed land as residential. On March 30, 1966, Bremerton created a planning commission and planning ordinances were passed. The city, at that time, elected to exercise their zoning power under article 11, sections 10 and 11 of the Washington State Constitution.
On April 21, 1966, a comprehensive plan was adopted for the city showing that an area on the subject property, approximately two or three acres in size, was planned for A public hearing was held in August of 1971 before the planning commission to consider a reclassification of an adjacent five acres from residential to commercial. A map is included to illustrate the area in dispute. The commission reported favorably to the council on the proposed rezone, and on August 11, 1971, the city council passed an ordinance expanding the original commercial zoning area by the additional five acres.
neighborhood business. On September 26, 1966, after publication of notice of a hearing, the city council rezoned the property to commercial zoning and subsequently published the ordinance in full after its adoption. In 1967 and 1968, building permits for a car wash and an addition to the office building on the property zoned commercial in 1966 were granted.
The Buells assigned numerous errors to the procedure followed in the 1966 rezoning, including the presence on the planning commission of Mr. E. Jennings Beard, whose property was benefited by the rezoning. These challenges were first made in 1971 in the action now before this court.
Laches may constitute a defense to a petition of certiorari to review decisions of planning boards or other governing boards and commissions in zoning where suit is brought by individuals against owners of adjoining or nearby property. 8A E. McQuillin, Municipal Corporations, § 25.317, at 402 (3d ed. 1965); 3 A. Rathkopf, The Law of Zoning and Planning, § 67, at 20 (3d ed. 1971).
The elements of laches are: (1) knowledge or reasonable opportunity to discover on the part of a potential plaintiff that he has a cause of action against a defendant; (2) an unreasonable delay by the plaintiff in commencing that cause of action; (3) damage to defendant resulting from the unreasonable delay. None of these elements alone raises the defense of laches. Laches is an implied waiver arising from knowledge of existing conditions and acquiescence in them. Pierce v. King County, 62 Wash.2d 324, 382 P.2d 628 (1963); Edison Oyster Co. v. Pioneer Oyster Co., 22 Wash.2d 616, 157 P.2d 302 (1945).
The Buells concede that laches bars any challenge they may have to businesses already present on the disputed property, pursuant to the 1966 rezoning. Their challenge appears to be directed to the validity of the commercial classification for the property zoned in 1966 but unoccupied by specific buildings. The record establishes actual or constructive knowledge on the part of the Buells of the commercial zoning of the 10 acres. The combination of publication of notice of a public hearing, publication of the entire ordinance in the newspaper, and issuance of building permits on two separate occasions gave the Buells constructive, if not actual, notice of the change in zoning classification of the entire property. Mrs. R. J. Smith, the owner of the parcel, spent $35,000 on future development plans, in reliance on the validity of the commercial zoning for the The validity of the 1971 rezoning is challenged on the basis that the actions of the planning commission and city council were void because the chairman of the planning commission was indirectly benefited by the rezoning. The appearance of fairness doctrine has received recent emphasis in our decisions regarding zoning. Basic to this is our recognition that restrictions on the free and unhampered use of property imposed by planning and zoning compel the highest public confidence in governmental processes bringing about such action. Members of commissions with the role of conducting fair and impartial fact finding hearings must, as far as practicable, be open-minded, objective, impartial, free of entangling influences and capable of hearing the weak voices as well as the strong. Chrobuck v. Snohomish County, 78 Wash.2d 858, 480 P.2d 489 (1971); Smith v. Skagit County, 75 Wash.2d 715, 453 P.2d 832 (1969). It is important not only that justice be done but that it also appear to be done, as noted in Justice Finley's concurring opinion in Chrobuck.
initial 10 acres. Mrs. Smith, by commercial development of a portion of the parcel she owned, in a manner inconsistent with residential use, put adjacent property owners on notice of possible further development of the remainder of that parcel within the limits of the 1966 ordinance. The findings of fact and conclusions of law affirmatively finding laches are supported in the record by the indications of delay by the Buells and prejudice to Mrs. Smith.
The importance of the appearance of fairness has resulted in the recognition that it is necessary only to show an interest which might have influenced a member of the commission and not that it actually so affected him. RK Development Corp. v. Norwalk, 156 Conn. 369, 242 A.2d 781 (1968); Kovalik v. Planning & Zoning Comm'n, 155 Conn. 497, 234 A.2d 838 (1967); Josephson v. Planning Board, 151 Conn. 489, 199 A.2d 690 (1964); Daly v. Town Plan & Zoning Comm'n, 150 Conn. 495, 191 A.2d 250 (1963).
A single act or set of circumstances casting suspicion can be as damaging as an entire course of conduct of the nature
present in Chrobuck. This is recognized by the bylaws of the Bremerton Planning Commission which provide:
CONFLICT OF INTERESTS
A commission member to whom some private benefit may come as the result of some public action, should not be a participant in that action. The private benefit may be direct or indirect and in either case, the possibility, not the actuality of a conflict of interest should govern. A commission member experiencing a conflict of interest should declare his interest publicly and if he is a voting member he should abstain from voting on the matter.
These bylaws give recognition to existing law relating to the right to challenge a member of an administrative tribunal exercising judicial or quasi-judicial functions. In Chrobuck, we found the role of a planning commission to be administrative and quasi-judicial. At least three types of bias have been recognized as grounds for disqualification of persons performing quasi-judicial functions. These are prejudgment concerning issues of fact about parties in a particular case; 1 partiality evidencing a personal bias or personal prejudice signifying an attitude for or against a party as distinguished from issues of law or policy; 2 and, as alleged in this case, an interest whereby one stands to gain or lose by a decision either way. 3 2 K. Davis, Administrative Law Treatise, § 12.01 (1958); State ex rel. Beddall v. Lonctot, 62 Wash.2d 845, 384 P.2d 877 (1963); State ex rel. Caffrey v. Superior Court, 72 Wash. 444, 130 P. 747 (1913); State ex rel. Barnard v. Board of Education, 19 Wash. 8, 52 P. 317 (1898).
There is some question raised as to whether Mr. Beard actually voted during the planning commission session regarding the 1971 rezone. The minutes of the meeting reflected that he did vote. These minutes were later approved without change. At trial, testimony was presented that the secretary erroneously recorded Mr. Beard's vote, and the trial court found that he did not vote. The official records of a public body may not be impeached in the absence of fraud. State ex rel. Grimmer v. Spokane, 64 Wash. 388, 116 P. 878 (1911).
Even if Mr. Beard, in his role as chairman, did not vote, he was found by the court to have a possibility of interest by virtue of the appreciation in his property values resulting from the 1971 rezoning. He could not be expected ot hear the weak voices as well as the strong, and most certainly could not appear to the public to be...
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