Zehring v. City of Bellevue

694 P.2d 638, 103 Wash. 2d 588

• Court: Washington Supreme Court
• Decided: January 11, 1985
• Docket: 48358-2
• Status: Published

Opinions

Utter, J.

It appears that this case is now moot. Shortly before our previous decision was issued, the Bellevue Planning Commission, sitting without Dean Tibbott, held a new set of design review hearings at which the applicant's modified project was approved. The relief ordered by the Court of Appeals and affirmed in our previous opinion, Zehring v. Bellevue, 99 Wn.2d 488, 663 P.2d 823 (1983), has already occurred. We can grant no further relief.

Generally, where only moot questions are involved, the appeal should be dismissed. Harvest House Restaurant, Inc. v. Lynden, 102 Wn.2d 369, 373, 685 P.2d 600 (1984); Sorenson v. Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972). An exception to this rule exists where we determine the moot issue to be of substantial or continuing public interest. The governing criteria for that determination are whether: (1) the issue presented is of a public or private nature, (2) it is desirable to provide guidance to public officers, and (3) the issue is likely to recur.

We find an issue meeting these criteria presented in the City of Bellevue's motion for reconsideration. In our previous opinion, we determined that the building design review hearings "were nothing more than a continuation or postponement of the ultimate rezoning decision." Zehring, at 497. Following from that conclusion, we held that the building design review hearings in this case were the type of quasi-judicial proceeding to which the appearance of fairness doctrine applies. Zehring, at 497.

Upon reflection, our previous characterization of the design review appears to be erroneous. The rezone, not design review, determined the legal rights of the parties. The rezone decision was neither "withheld until later approval" nor "postponed". On December 13, 1976, the Bellevue City Council passed a rezone ordinance reclassifying property located between N.E. 24th Street and Highway 520, east of 130th Avenue N.E. The rezone took effect 5 days after passage and publication. Plaintiff's exhibit 17: City of Bellevue ordinance 2371. The property was rezoned subject to conditions contained in a zoning agreement between the City and the property owners. That zoning agreement specified that the City may revoke the rezone for the owners' failure to comply with the agreement's terms and conditions. The terms and conditions provide in part:

C. Uses permitted on the property shall be limited to those non-residential uses allowed in the B-2L classification.

D. Development of the property shall be subject to design review by the Planning Commission.

E. Two-story buildings may be permitted by design review, provided the Planning Commission finds that such buildings will not visually intrude upon the residential areas to the west of the property and to the north of N.E. 24th Street.

Plaintiff's exhibit 19: Concomitant Zoning Agreement.

Design review to determine only whether the proposed buildings will visually intrude upon specified residential areas is not a rezone action. The planning commission's determination authorized no activity on the property not previously authorized by the City Council. In a city operating under RCW Title 35A, as Bellevue does, authority to zone and rezone is vested solely in the city council. Lutz v. Longview, 83 Wn.2d 566, 570, 520 P.2d 1374 (1974) (construing RCW 35A.63.100 which sets forth zoning powers of the city). A city operating under Title 35A may, however, delegate to the planning commission the administrative functions relating to the specifics of a site already rezoned. Lutz v. Longview, supra at 570. That is precisely what the Bellevue City Council did.

The appearance of fairness doctrine has never been applied to administrative action except where a public hearing was required by statute. Polygon Corp. v. Seattle, 90 Wn.2d 59, 67-68, 578 P.2d 1309 (1978) (appearance of fairness doctrine not applicable to building permit application process). Although zoning reclassifications require a public hearing, see former sections 18.64.010 and 18.64.050 of the Bellevue City Code, design review does not.

We reverse the Court of Appeals and vacate our previous order.

Williams, C.J., and Brachtenbach, Dolliver, Dimmick, and Pearson, JJ., concur.