# Fleming v. City of Tacoma

> Washington Supreme Court · October 5, 1972 · 81 Wash. 2d 292

URL: https://www.frixlaw.com/law-library/cases/9577434

## Case

- **Full name:** Elizabeth A. Fleming, Respondent, v. the City of Tacoma Et Al., Appellants
- **Court:** Washington Supreme Court
- **Decided:** October 5, 1972
- **Citations:** 81 Wash. 2d 292; 502 P.2d 327; 1972 Wash. LEXIS 734
- **Precedential status:** Published
- **Opinion:** Concurrence by Neill
- **Judges:** Stafford, Neill
- **Cited by:** 74 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Raynes v. City of Leavenworth, 118 Wash. 2d 237 (1992).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9577434

## Opinion text

Neill, J.
(concurring)—The record is clear that councilman Murtland was not employed by the developers seeking the zone change until 2 days after final action on the ordinance. The trial court expressly found there was no conflict, of interest, but felt compelled to invalidate the ordinance by reason of the “appearance of fairness” doctrine enunciated by this court in Smith v. Skagit County, 75 Wn.2d 715 , 453 P.2d 832 (1969), and thereafter broadened in Chrobuck v. Snohomish County, 78 Wn.2d 858 , 480 P.2d 489 (1971), and Buell v. Bremerton, 80 Wn.2d 518 , 495 P.2d 1358 (1972).
I have previously expressed my dissent from this doctrine particularly as applied to legislative bodies. See dissents in Chrobuck and Buell . My reasons for such disagreement with the majority of the court have been primarily based on the principle of separation of powers. Legislation is not to be nullified by the judicial branch of government, unless the enactment contravenes the constitution or is manifestly unreasonable, arbitrary and capricious. E.g., see Farrell v. Seattle, 75 Wn.2d 540 , 452 P.2d 965 (1969). In enacting a comprehensive plan and adopting zoning controls, a legislative body is clearly acting in a legislative capacity. Further, certain amendments to zoning ordinances are legislative in nature. E.g., amendments to the comprehensive plan itself and amendments as to the type of activity permitted in a particular classification throughout the community.
In today’s decision this court adopts the view that reclassification of specific tracts (rezone) is adjudicatory in nature, rather than legislative. I perceive good reason to modify my previous view as expressed in the dissents in Chrobuck and Buell , to the extent of recognizing that the final *302 decision on a rezone amendment partakes of an adjudication of the private property rights between or among two or more landowners and is properly viewed as being a quasi-judicial action. 5
I remain unconvinced that this “appearance of fairness” doctrine is sufficiently definite and reckonable for practical application, but having failed to obtain a majority on this issue in either Chrobuck or Buell , I must recognize that the doctrine has been adopted as the law of the state. Accordingly, I concur in the result of the majority opinion.
Chrobuck v. Snohomish County, 78 Wn.2d 858 , 480 P.2d 489 (1971), and Buell v. Bremerton, 80 Wn.2d 518 , 495 P.2d 1358 (1972), are distinguishable from the instant case in that both involved suspect activity by members of a planning commission—an administrative body 'possessing only recommendatory powers. In the case at bench, bias is charged to a member of a city council, the body ultimately responsible for the fate of the proposed rezone amendment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9577434. Public record. Not legal advice.