§ 7.3 - Sources of Authority

JurisdictionWashington

§7.3 sources of authority

Local jurisdictions may require development exactions or impact fees under a number of different sources of authority, including sources with constitutional, common law, and statutory underpinnings. The following sections discuss the principal sources of this authority.

(1) Local governments' general constitutional and statutory authority over zoning and land use matters

In Washington, the regulation of land use and zoning is primarily a local government concern: local government derives its general regulatory authority over these matters from the state constitution and statutes.

Courts have long recognized local jurisdictions' general "police power" authority to enact and enforce land use and zoning regulations. See, e.g., Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 397, 47 S. Ct. 114, 71 L. Ed. 303 (1926); Lewis v. City of Medina, 87 Wn.2d 19, 21, 548 P.2d 1093 (1976) (en banc). In Washington, this authority is based in the state constitution, which provides that "[a]ny county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." Wash. Const. art. XI, §11. Courts have described the "broad [constitutional] authority granted to local government in land use matters" to be as broad as the state legislature's authority, "[s]o long as the subject matter is local and the legislation is reasonable." Southwick, Inc. v. City of Lacey, 58 Wn. App. 886, 891, 795 P.2d 712 (1990); see also Covell v. City of Seattle, 127 Wn.2d 874, 878, 905 P.2d 324 (1995) (en banc) ("The scope of police power is broad, encompassing all those measures which bear a reasonable and substantial relation to promotion of the general welfare of the people.").

Various state statutes also authorize cities and counties to carry out a number of land use planning and regulatory functions, including the state subdivision statute, Chapter 58.17 RCW, one of the state's oldest land use laws, which provides uniform standards and procedures for local government approval of subdivisions of land and binding site plans. The planning enabling acts and the optional municipal codes set forth procedures and requirements for local government comprehensive plan and zoning decisions. See, e.g., Chs. 36.70 (for counties), 35.22 (for first-class cities), 35.23 (for second-class cities), and 35A.63 (for code cities) RCW. The Growth Management Act (GMA), Chapter 36.70A RCW, was adopted in 1990 to ensure coordinated and planned growth in the state's fastest growing counties and the cities within them. The GMA requires certain local governments to adopt comprehensive plans with goals and policies concerning the use and development of land and other required land use planning elements, and to adopt zoning and development regulations that implement and are consistent with the comprehensive plan goals and policies. Many other statutes control local governments' land use and zoning authority, including the Shoreline Management Act (SMA), Chapter 90.58 RCW; the State Environmental Policy Act (SEPA), Chapter 43.21C RCW; and the State Building Code Act, Chapter 19.27 RCW. See also Tit. 35 (Cities and Towns) and 36 (Counties) RCW; Ch. 36.70B (Local Project Review) RCW.

These sources have long been interpreted by Washington courts to give local governments authority to impose conditions upon development, including exactions and fees that are intended to mitigate impacts caused by the particular use, as long as they do not constitute a "tax." See, e.g., Southwick, 58 Wn. App. at 893 (condition on conditional use permit for expansion of funeral home complex and cemetery requiring construction of street improvements and street lights upheld under constitutional and statutory zoning authority); Gerla v. City of Tacoma, 12 Wn. App. 883, 889, 533 P.2d 416 (1975), review denied, 85 Wn.2d 1011 (1975) (condition on special permit requiring dedication of land for expansion of street right-of-way upheld under city's inherent power to impose reasonable conditions and restrictions on permits under general statutory zoning authority); Miller v. City of Port Angeles, 38 Wn. App. 904, 910, 691 P.2d 229 (1984), review denied, 103 Wn.2d 1024 (1985) (requiring developers to improve one road and pay proportionate cost of improving another as condition of subdivision approval under RCW 58.17.110 upheld as a proper exercise of the city's police power).

Note: The broad police power of local government does not include the power to tax. Hillis Homes, Inc. v. Snohomish Cnty., 97 Wn.2d 804, 804, 650 P.2d 193 (1982) (en banc). Thus, if an exaction is determined to be a "tax," it is invalid unless expressly
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