Fleming v. City of Tacoma

• Citation: 502 P.2d 327,81 Wn.2d 292
• Decision Date: 05 October 1972
• Docket Number: No. 42188,42188
• Court: Washington Supreme Court
• Parties: Elizabeth A. FLEMING, Respondent, v. CITY OF TACOMA et al., Appellants.

Page 292

81 Wn.2d 292

502 P.2d 327

Elizabeth A. FLEMING, Respondent, v. CITY OF TACOMA et al., Appellants.

No. 42188.

Supreme Court of Washington, En Banc.

Oct. 5, 1972.

Hodge, Mann, Copeland & King,

Quinby R. Bingham, Tacoma, for respondent.

Robert R. Hamilton, City Atty., F. H. Chapin, Jr., Tacoma, Hal D. Murtland, Burton W. Lyon, Jr., Tacoma, for appellants.

STAFFORD, Associate Justice.

This case involves an alleged conflict of interest on the part of a city councilman who voted in favor of a zoning amendment.

In March 1969, the application of certain land developers, for a zoning reclassification of four parcels of real property in the vicinity of the Narrows Bridge in the city of Tacoma, was placed on the agenda of the Tacoma Planning Commission. The City of Tacoma and the land developers are appellants herein. The proposal sought to change the area from R--1 and R--2, single family residence districts, to an R--3 and R--5 PRD, multiple family planned residential development district. The primary purpose was to authorize construction of a high rise condominium although the requested reclassification would also have permitted construction of town houses and retirement homes as well. The planning commission recommended approval, subject to certain conditions.

On July 1, 1969, the Tacoma City Council held a public hearing on the proposed rezoning. At its conclusion, the council concurred with the planning commission's recommendation and, by a 5--4 vote, directed the city attorney to prepare an ordinance to rezone the area. Councilman Murtland voted with the majority.

At the first reading of the ordinance on August 19, 1969, another public hearing was held. Respondent and neighbors living adjacent to the property to be rezoned presented testimony in opposition to the application. They claimed the proposed high-rise condominium would obstruct their view of Puget Sound and would be detrimental to the value of their property because covenants running with the land restricted use to single family dwellings whereas the property under consideration for rezoning was not similarly restricted. The neighbors also alleged that the proposal constituted spot zoning.

On August 26, 1969, the ordinance came on for the second and final reading. Respondent and the other neighboring property owners again protested the probable loss of property value. Councilman Murtland suggested further study of the effect of the ordinance upon the abutting property which was burdened with restrictive covenants. The council refused and a vote was called. The ordinance lost by a tie vote of 4--4, Councilman Murtland voting against it. Having voted with the prevailing side, Councilman Murtland was empowered to move for reconsideration of the ordinance.

At the next council meeting, Councilman Murtland moved to reconsider. The motion passed 6--3, Councilman Murtland voting with the majority. As a result, consideration of the ordinance was placed on the council's September 17 agenda. On September 17 the ordinance passed by a vote of 6--3. This time Councilman Murtland voted in favor thereof. The meeting was adjourned about 10 p.m., September 17, 1969.

On September 19, less than 48 hours after the final vote, Councilman Murtland, now acting as attorney for the successful land developers, wrote to the Secretary of State asking whether the name Bridgeview Development Company was available for his clients' corporate use. On September 26, 1969, articles of incorporation for the Bridgeview Development Company were executed by the land developers in the law office of Councilman Murtland. They were approved by the Secretary of State on October 1, 1969. The ordinance became law on October 2, 1969. Mr. Murtland remained a city councilman until well after the events here involved.

Thereafter, respondent applied for a writ of certiorari alleging, Inter alia, that the rezone was illegal because (a) the council failed to consider the ordinance's effect on abutting property which was burdened with restrictive covenants, and (b) the rezone constituted spot zoning. Following a hearing the trial court orally denied the writ. Thereafter respondent moved for reconsideration of the court's oral decision, alleging new evidence of a possible conflict of interest on the part of Councilman Murtland.

After a hearing on the conflict of interest issue, the trial court entered judgment against respondent on those matters contained in the original writ application but held the ordinance was invalid because it would appear to third persons 'that a conflict of interest and impropriety existed in the action of the council . . . during passage of (the) Ordinance.' Although the court specifically found that no actual conflict of interest existed, it also found that:

by reason of the representation of the applicant (developer) by Councilman Murtland two days following the final vote on (the) ordinance . . . that the public has not been afforded the action and decision of a public official that is free of suspicion of unfairness or temptation to which they are entitled in the passage of zoning reclassification ordinances.

We have long passed the time when one may use his land as he wishes provided it creates no nuisance. The concentration of population and the infinite variety of modern land uses necessitate effective land use planning. The restrictions on use, inherent in zoning, insure that if one uses his property in a way harmonious with the existing zoning codes, he will be free from the danger that the future use of his neighbor's land might be detrimental to or foreclose his own established use. Decisions which amend or change conditions under existing zoning laws therefore require an extremely sensitive balance between individual rights and the public welfare. The process by which such decisions are made must not only be fair but must appear to be fair to insure public confidence therein.

In recent years we have adopted the appearance of fairness doctrine in zoning decisions. Three cases in particular have developed the essential guidelines.

In Smith v. Skagit County, 75 Wash.2d 715, 739, 453 P.2d 832, 846 (1969), we said whenever the law requires a hearing of any sort as a condition precedent to the power to proceed, it means a fair hearing, a hearing not only fair in substance, but fair in appearance as well. . . . Where the law expressly gives the public a right to be heard . . . the public hearing must, to be valid, meet the test of fundamental fairness, for the right to be heard imports a reasonable expectation of being heeded. Just as a hearing fair in appearance but unfair in substance is no fair hearing, so neither is a hearing fair in substance but appearing to be unfair.

In Smith we focused our attention upon defects in the hearing itself rather than upon motives of the members who conducted the hearing. We held that hearings before the county planning commission and board of county commissioners failed to meet the test of fairness. ¹ We were particularly disturbed by the planning commission's closed executive session to which proponents were invited and opponents excluded, and by the county commissioners' refusal to allow opponents to present their views on certain occasions. Additionally, there was a sharp contrast between the deliberative consideration given the original zoning and the hasty consideration given its amendment.

In two subsequent cases we shifted our attention from hearing procedures to the motives of those who conducted them. In Chrobuck v. Snohomish County, 78 Wash.2d 858, 480 P.2d 489 (1971), we held that hearings before the county planning commission lacked an appearance of fairness because a member thereof had close prior social and business connections with a proponent of the rezone and his successor had publicly supported the proponent's position prior to his appointment. We were critical of the fact that even though the challenged commissioner had not voted, he had participated in the commission's deliberations. Similarly, in Buell v. Bremerton, 80 Wash.2d 518, 495 P.2d 1358 (1972), we held that hearings before a city planning commission lacked an appearance of fairness because one of its members owned property that appreciated in value as a result of the decision. In Buell there was a question as to whether the commission member had actually voted. We held, however, that even if he had not voted there was a possible conflict of interest because the value of his own property had been appreciated by the rezone. We therefore invalidated the planning commission's actions, stating at page 525, 495 P.2d at page 1362:

The fact that the action carried without the necessity of counting his vote is not determinative. The self-interest of one member of the planning commission infects the action of the other members of the commission regardless of their disinterestedness.

The challenged actions in both Chrobuck and Buell were taken by administrative bodies.

In the past we have examined the motives of administrative officers when reviewing their decisions in zoning matters. ² On the other hand, we have refrained from such an examination of legislative bodies, I.e., boards of county commissioners or city councils, when acting pursuant to statutes regulating zoning. We have held that while so acting they are exercising legislative powers and therefore we will not, in the absence of fraud, inquire into the motives of their members. Lillions v. Gibbs, 47 Wash.2d 629, 632, 289 P.2d 203 (1955). The question here is whether we should continue in that vein or whether we should extend the appearance of fairness doctrine to encompass and examination into the motives of city councilmen and county commissioners when acting in a legislative capacity upon zoning amendments.

Generally courts will not inquire into the motives of legislative officers acting in a legislative capacity. Goebel v. Elliott, 178 Wash. 444, 35 P.2d 44 (1934)...