(partial dissent) — I do not join in the overruling of Chestnut Hill Co. v. Snohomish, 76 Wn.2d 741, 458 P.2d 891 (1969), by today’s opinion. That case was a unanimous opinion by this court, yet it is overturned almost before the ink is dry on the published opinion.
There are some differences in relevant facts between Chestnut Hill Co. and the case at bench, but in essence both cases involve actions by a planning commission having only recommendary powers; in both a member of the planning commission was alleged to have an interest, making his participation inappropriate; and in both the city council, independently and after investigation on its own, amended the zoning ordinance by reclassification of particular areas. If the council were bound by the recommendation of the planning commission, or if council action were based on the planning commission’s recommendation without further investigation and inquiry by the council as an independent body, Chestnut Hill Co. would be inapposite.
I believe the “appearance of fairness” issue was properly viewed by the trial judge who stated in his oral memorandum opinion:
The fourth point is that there was a conflict of interest resulting in an appearance of impropriety, and that that was fatal to the ordinance’s validity. E. Jennings Beard heads a real estate firm which offices on property he owns at Pearl and Wheaton Way. This property adjoins the Smith property. It was zoned B-3 by Bremerton long prior to Mrs. Smith’s petition for rezoning these five acres.
Mr. Beard is Chairman of the Planning Commission, and presided over the public hearing of June 16, 1971. He did not vote on the matter of the Smith rezone, however, but he did participate in the meeting.
Under the By-laws of the Planning Commission, Mr. *528Beard should have disqualified himself and not participated in the meeting. This is not because he actually stood to receive some benefit by the Smith rezone, because there has been no evidence of that as such introduced here; but because the By-laws provide that a member to whom some private benefit may come, direct or indirect, even possibly, should not participate. The Court does not find that Mr. Beard has or will receive any benefit, but does recognize the possibility property value-wise does exist.
With those findings, then, does his participation, even though he didn’t vote, in the Planning Commission public hearing, invalidate the ordinance. His participation, I must observe, was open; certainly there was nothing secret or hidden about this; his ownership of the adjoining parcel was a well known fact to the residents of the area; and they are the people we are here concerned with because they are the ones that are asking to have the rezone upset. Yet no one objected to the part he played in the meeting. No one there asked him to disqualify himself. No one asked the City Council for a public hearing concerning his participation.
This case factually, then, is far different from the Chrobuck case. There a challenge both during and after commission hearings was rejected. The Court there says something very interesting. At page 893 of that opinion —because you will remember there were more challenged actions than just a single meeting, a single incident. The Court says:
“Based upon the cumulative impact of the foregoing circumstances,”
the hearings lacked the requisite appearance of fairness, which implies at least to this Court that they considered the number of actions and the cumulative effect of them, and didn’t find that a single action would necessarily eliminate the appearance of fairness and require invalidating the activity of the commission.
What’s the reason? I think we have to come to the heart of this thing. The reason the public hearings are held. Well, there are certainly more reasons than one. I don’t mean to be simplistic about it, but I think the primary reason is to allow interested parties to voice their views about any contemplated action by the Planning Commission. Were it not for the opportunity for them to object or to concur in the contemplated action by *529the Planning Commission, there would be no need to have a public hearing. Is there any claim that this was not allowed in this hearing? Is there any claim that Mr. Beard interfered with their presentations in this hearing? I find nothing in the record of that nature. Can there be any valid claim that Mr. Beard unduly attempted to inflict his point of view on the other commission members? I have read the fragmented transcript and I cannot find from what he said that this in any way was an attempt to pressure or push his point of view on the others.
The recommendation of the Planning Commission was treated as just that, and I think this is very important, — a recommendation. Obviously the Council did not accept it blindly, and I point to the fact that at least one of the Council members made an on-site visit and that there were independent discussions regarding the access problem. The matter was not accepted, the motion was not passed, at the first meeting they had on this; but instead there was a continuance to another date to allow them time to make an investigation.
The Court concludes, therefore, that Mr. Beard’s participation was inappropriate, but does not void the zoning ordinance passed by the City Council. There is a legal presumption that an ordinance is valid and reasonable until one attacking it makes an affirmative showing to the contrary. This burden of proof is a heavy one and requires clear, cogent and convincing evidence to sustain it. In the absence of an affirmative showing to the contrary, it is presumed that the mandatory provisions of the law were duly observed, in substance at least, in the ordinance’s enactment.
I am in disagreement with the hard burden enunciated by the trial court in the final quoted paragraph. I have previously expressed my view that a proper “appearance of fairness” standard would be to the effect that “suspicious circumstances yielding a definite appearance of unfairness can be sufficient to counterbalance the usual presumption of due and proper zoning enactments and place a burden on the zoning agency to show that the proceedings were fair in fact.” Chrobuck v. Snohomish County, 78 Wn.2d 858, 876, 480 P.2d 489 (1971) (dissenting opinion). Here it seems to me that the independence of the council in enacting the *530zoning ordinance was sufficient to prevent nullification of that ordinance on “appearance of fairness” grounds.
I have previously expressed my objection to the “appearance approach” being taken by this court as a “subjective and personal, not a legal, standard.” Chrobuck, at 877. Today’s majority opinion seems to go even farther, preempting for courts the prerogative of curing the perceived “appearance of unfairness” in others. In my view, zoning matters are primarily legislative or administrative in nature. Legislative bodies, acting independently, are surely as capable as courts of removing any collateral taint of unfairness. The majority opinion, in precluding that possibility, applies a more limited respect for legislative and administrative functions than I believe appropriate.
Even if, by judicial fiat, the entire zoning process is to be regarded as “quasi-judicial” and thus subject to the strict standards of conduct applied to courts, some standards more definite than the present “appearance of fairness” test should be established. As it is, public officials are left floundering, impressed with the duty to act, but subject to the ultimate possibility that some part of the entire process, however remote and collateral, will somehow be regarded by courts as “appearing unfair.” In the highly sensitive field of zoning, bordering on a taking of private property rights for the benefit of the community, more objective and reckonable standards should be enunciated.
I would affirm the trial court as to both the 1966 and 1971 rezone ordinances.
Hunter, J., concurs with Neill, J.