Concurrence in Order by Sanders, J.

No. 63913-2

SANDERS, J. (concurring)—The principal issue raised by petitioner Baker Commodities is "did the Court of Appeals err in refusing to rule that Tukwila acted arbitrarily and capriciously even though it had already ruled there was no substantial evidence to support its decision?" Petition for Review at 2.

I concur that the writ action is moot because there has been a settlement between the parties. I also agree that it is not necessary for the court to decide the identified issue because that issue arises from dicta present in the Court of Appeals opinion rather than from its holding that "the trial court complied with the language of RCW 7.16.120(5) when it applied the substantial evidence to its review of the city council’s factual findings." Decision at 8.

The further question which the petitioner attempts to raise (does arbitrary and capricious equate to the lack of substantial evidence) was not decided by the trial court nor the Court of Appeals. Nor was it necessary for either court to decide that issue to grant relief under the writ statute. Whether or not the unpublished opinion is correct to claim there is a plain and important distinction between the statutory substantial evidence standard and the arbitrary and capricious standard is unnecessary to determine for the purpose of the writ action, although this is an important question. It would therefore be improper to consider the challenged language in the Court of Appeals opinion which refuses to equate arbitrary and capricious with the absence of substantial evidence as the law of this case under these circumstances. I therefore concur in dismissal of the petition without prejudice.