Pentagram Corp. v. City of Seattle

• Decision Date: 19 January 1981
• Docket Number: No. 7964-6-I,7964-6-I
• Parties: PENTAGRAM CORPORATION, a Washington Corporation, Respondent, v. CITY OF SEATTLE, a municipal corporation, and The City Council of Seattle: John Miller, George E. Benson, Michael Hildt, Tim Hill, Paul Kraabel, Randy Revelle, Dolores Sibonga, Sam Smith and Jeanette Williams, its members, Appellants.
• Court: Washington Court of Appeals

Page 219

28 Wn.App. 219

622 P.2d 892

PENTAGRAM CORPORATION, a Washington Corporation, Respondent, v. CITY OF SEATTLE, a municipal corporation, and The City Council of Seattle: John Miller, George E. Benson, Michael Hildt, Tim Hill, Paul Kraabel, Randy Revelle, Dolores Sibonga, Sam Smith and Jeanette Williams, its members, Appellants.

No. 7964-6-I.

Court of Appeals of Washington, Division 1.

Jan. 19, 1981.

Douglas Jewett, City Atty., Ellen D. Peterson, Asst. City Atty., Seattle, for appellants.

Foster, Pepper & Riviera, Marco Magnano, Jr., Seattle, for respondent.

MacDonald, Hoague & Bayless, Harold H. Green, Francis Hoague, and Eleanor C. Hoague, Seattle, amici curiae.

CALLOW, Chief Judge.

The City of Seattle appeals from an order of summary judgment requiring it to approve the issuance of a special building and use permit to Pentagram Corporation In 1961, John Graham & Company acquired the property at the Seattle Center from the City of Seattle in order to construct a Space Needle for the 1962 World's Fair. Because the Space Needle was a structure not covered by the Seattle Building Code, the City Council authorized the issuance of a special building and use permit by ordinance. In addition, the Board of Adjustment and the City Council granted a height variance. Although the original design of the Space Needle provided for two observation platforms, one at the 100-foot level and one at the 300-foot level, neither platform was constructed.

for the construction of a restaurant and meeting facility at the 100-foot level of the Space Needle.

Pentagram Corporation purchased the Space Needle and thereafter submitted preliminary project plans and an environmental checklist to the Seattle Building Department for the construction of a restaurant and meeting facility on the 100-foot level. The superintendent of the building department prepared a declaration of non-significance pursuant to the State Environmental Policy Act, finding that the proposed project would not have a significant adverse impact on the environment and therefore an environmental impact statement was not required. In a subsequent appeal, a hearing examiner affirmed the superintendent's decision, concluding that there was no substantial evidence that the design of the proposed addition to the Space Needle would result in the creation of a aesthetically obnoxious sight open to public view. The examiner also concluded that the Space Needle was not eligible for designation as an historic site under the Seattle Landmarks Ordinance and that the appellants had failed to substantiate its historical nature. No further appeal was taken from the decision of the hearing examiner.

Pentagram subsequently submitted plans for the project to the building department pursuant to section 308 of the Building Code of the City of Seattle, which prior to its repeal provided that "(t)he building official, with the approval of the City Council, may issue special building The recommendation of the committee to deny approval of the special permit was then brought before the entire City Council. The council voted five to four against the resolution. No findings of fact were entered by the City Council stating the reasons for the denial, though a verbatim transcript of the proceedings was taken.

and use permits for the construction and occupancy of structures and permit premises not specifically covered in this code." After Pentagram Corporation satisfied the requirements of the building department, the Superintendent of Buildings submitted a proposed resolution to the City Council approving the special permit. The resolution was first considered by the Urban Development and Housing Committee of the City Council, which recommended against approval.

Pentagram sought review by certiorari in the Superior Court of the council's decision and moved for summary judgment. The order granting Pentagram's motion stated:

1. (Pentagram) is granted a declaratory judgment that § 308 of the Seattle Building Code be interpreted as follows:

A. Issuance of a special building permit is mandatory if the building official and the City Council both find that the project conforms to the requirements of the Seattle Building Code with respect to type and quality of construction, fire and life-safety systems, provided, the building official and the City Council may add conditions for construction and occupancy as they deem necessary for the protection of life, property and the public welfare.

2. Retention of the Space Needle's present configuration solely on the ground it has become a symbol is not a valid reason for rejection of a permit to alter that structure and cannot be attached as a condition to the granting of the permit as being necessary for the public welfare. Therefore, denial of petitioner's application for issuance of a special building permit in this case was unlawful.

The trial court permitted the City to reconsider whether additional life-safety conditions should be imposed. The

council thereafter determined that the structure was safe, imposed no additional conditions, and authorized issuance of the permit pursuant to the court order.

MOOTNESS

The first issue is whether the City's authorization of the permit following the order of summary judgment renders the City's appeal moot.

A case is considered moot if there is no longer a controversy between the parties, State ex rel. Chapman v. Superior Court, 15 Wash.2d 637, 131 P.2d 958 (1942); if the question is merely academic, Grays Harbor Paper Co. v. Grays Harbor County, 74 Wash.2d 70, 442 P.2d 967 (1968); or if a substantial question no longer exists. Sorenson v. Bellingham, 80 Wash.2d 547, 496 P.2d 512 (1972). Although in some jurisdictions an appeal is considered moot if a party voluntarily complies with a writ of mandamus during the pendency of the appeal, see generally, Annot., 39 A.L.R.2d 153 (1955), we conclude that the inquiry is whether a court can grant effective relief by restoring the parties to the status quo, not whether the party complied with the trial court's order.

The record demonstrates that although the City Council complied with the trial court's order and approved the issuance of the special permit, no further action has been taken by either party. There continues to be a real controversy between the parties and the issues presented are not purely academic. We conclude that effective relief can be granted, and accordingly deny the motion to dismiss the appeal as moot.

ADMINISTRATIVE ACTION

The next issue is whether the City Council acted legislatively or administratively in denying approval of the special building and use permit pursuant to section 308 of the Seattle Building Code.

Section 308 of the Seattle Building Code, which has now been repealed, provided Special Permits. The building official, with the approval of the city council, may issue special building and use permits for the construction and occupancy of structures and permit premises not specifically covered in this code. For the issuance of such permit, the Building Official and the City Council may attach thereto special requirements and conditions for construction and occupancy as they deem necessary for the protection of life, property and public welfare.

The trial court determined that the action taken by the City Council in denying approval under this section was administrative, and that because Pentagram had complied with all applicable life and safety requirements of the building code, issuance of the permit was mandatory. The City contends that the trial court improperly construed section 308, and that the City Council retains legislative authority in determining whether to approve, deny, or condition the issuance of special building permits. We disagree.

In Durocher v. King County, 80 Wash.2d 139, 152-53, 492 P.2d 547 (1972), the court stated:

In distinguishing between legislative and administrative actions of municipal legislative bodies, courts have frequently adopted two tests stated in 5 E. McQuillin, The Law of Municipal Corporations, § 16.55 (3d ed. 1969 rev. vol.) at page 213:

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.

In applying this test, the court in Durocher determined that the county council acted administratively and not legislatively in granting or denying an "unclassified use permit." Similarly, in Lund v. Tumwater, 2 Wash.App. 750, 755, 472 P.2d 550 (1970), the court held that the action by the City of Tumwater in granting a "special permit" was administrative and not legislative:

However, every act of a legislative body is not a legislative act. Even though there is contrary authority ..., it is generally held that the granting of a special permit is an administrative or quasi-judicial act, whether done by the city council or by an administrative body.

(Citations omitted.) See also State ex rel. Standard Mining & Dev. Corp. v. Auburn, 82 Wash.2d 321, 510 P.2d 647 (1973).

We similarly hold that the action of the City Council in approving or denying a special permit under section 308 of the Seattle Building Code was administrative, not legislative action. The City Council acted legislatively when it adopted the building code and provided in section 308 that buildings not covered would be the subject of special approval. The approval of a permit under...