Chapter § 8.2 Zoning Authority

• Jurisdiction: Washington

§8.2 ZONING AUTHORITY

The development of zoning authority in Washington is discussed below.

(1) Early control of land uses

Prior to the broad-based establishment of zoning laws, control of land uses in Washington state was largely accomplished through private enforcement of restrictive covenants, see, e.g., Johnson v. Mt. Baker Park Presbyterian Church, 113 Wash. 458, 459, 472, 194 P. 536 (1920) (enforcing residential restrictive covenant to enjoin building of church); and through application of common-law nuisance principles, see, e.g., Densmore v. Evergreen Camp No. 147, Woodmen of the World, 61 Wash. 230, 231, 112 P. 255(1910) (undertaker establishment considered potential nuisance by reason of its location in residential area); see also Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408, 433-34, 109 S. Ct. 2994, 106 L. Ed. 2d 343 (1989) (noting historical parallel between power to zone and common-law nuisance maxim " sic utere tuo ut alienum non laedas"—use your own property in such a manner as not to injure that of another). The subsequent evolution of zoning laws marked a more proactive effort to discourage incompatible land uses through land use planning and regulation.

(2) Constitutional authority to zone

In Washington state, local governments have authority to zone pursuant to their constitutional police powers, various zoning enabling statutes, and home rule charter authority. Constitutional authority is derived primarily from local police powers set forth in the Washington Constitution: "Police and Sanitary Regulations. Any 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. Zoning ordinances are considered valid exercises of the police power as long as they bear a substantial relation to the public health, safety, or general welfare. Duckworth v. City of Bonney Lake, 91 Wn.2d 19, 34, 586 P.2d 860(1978); see also Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386-88, 47 S. Ct. 114, 118, 71 L. Ed. 303 (1926). A local government's constitutional authority to zone under its police powers exists independent of any statutory authorization. Nelson v. City of Seattle, 64 Wn.2d 862, 866, 395 P.2d 82 (1964). Exercise of this authority is, however, subject to the express Article XI, §11 limitation that such regulations may not conflict with state law. Id.

Home rule charter counties also maintain constitutional authority to zone pursuant to Article XI, §4 of the Washington Constitution ("Any county may frame a ‘Home Rule' charter for its own government subject to the Constitution and laws of this state...."). Cities have similar home rule authority under Article XI, §10 of the Washington Constitution ("Any city containing a population of ten thousand inhabitants, or more, shall be permitted to frame a charter for its own government, consistent with and subject to the Constitution and laws of this state..."). Exercise of zoning power under these home rule provisions is likewise subject to an express restriction against the adoption of laws that conflict with the state's constitution or statutes. Norco Constr., Inc. v. King Cnty., 29 Wn.App. 179, 185, 627 P.2d 988 (1981), modified...