Chapter § 8.9 Constitutional Zoning Considerations

• Jurisdiction: Washington

§8.9 CONSTITUTIONAL ZONING CONSIDERATIONS

Zoning and other forms of development regulation are subject to the protections of the United States and Washington state constitutions. "Any grant of police power to local government is subject to constitutional limitation, which is judicially enforced." Biggers v. City of Bainbridge Island, 162 Wn.2d 683, 694, 169 P.3d 14 (2007).

Constitutional challenges to zoning matters are most typically raised in conjunction with the development review process. Such claims may serve as a basis for overturning the challenged development permit decision. See RCW 36.70C.130(1)(f) (including among grounds for Land Use Petition Act review claim that "[t]he land use decision violates the constitutional rights of the party seeking relief."); RCW 34.05.570(3)(a) (Administrative Procedure Act remedy when statute or rule on which the state agency order is based is "in violation of constitutional provisions on its face or as applied.").

Comment: Zoning actions that violate federal rights may likewise give rise to a claim for damages under 42 U.S.C. §1983. The requirements and limitations of such Civil Rights Act claims are beyond the scope of this chapter.

Parties challenging the constitutionality of a zoning ordinance face the heavy burden of overcoming a presumption in favor of constitutionality. DCR, Inc. v. Pierce Cnty., 92 Wn.App. 660, 687, 964 P.2d 380 (1998) ("we must construe an ordinance to uphold its constitutionality, if possible"), review denied, 137 Wn.2d 1030 (1999); see also Granat v. Keasler, 99 Wn.2d 564, 568, 663 P.2d 830 (1983); Duckworth v. City of Bonney Lake, 91 Wn.2d 19, 33, 586 P.2d 860 (1978).

Courts typically will not reach a constitutional claim when a statutory remedy is otherwise available. Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 752-53, 49 P.3d 867 (2002) (fundamental principle that if a case can be decided on nonconstitutional grounds, in this case RCW 82.02.020, the court will refrain from deciding constitutional issues).

The more common types of constitutional claims pertaining to zoning actions are summarized below.

(1) Procedural due process

Both the Washington state and United States constitutions provide that no person shall be deprived of "life, liberty, or property, without due process of law." U.S. Const. amend. XIV, cl. 1; Wash. Const. art. I, §3.

A fundamental prerequisite to maintaining a due process claim is a governmental deprivation of a property interest. Property interests include "reasonable expectations of entitlement derived from independent sources such as state law." Bonneville v. Pierce Cnty., 148 Wn.App. 500, 515, 202 P.3d 309 (2008), review denied, 166 Wn.2d 1020 (2009). The right to use and enjoy land in accordance with applicable legal restrictions is considered a protected property right. Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 962, 954 P.2d 250(1998). Such protected interests may also include a landowner's entitlement to approval of certain types of development permits that satisfy procedural and substantive requirements governing their review. Id. at 960-61 (applicant satisfying relevant review criteria has constitutionally cognizable property right in ministerial grading permit).

Absent a legitimate claim of entitlement, however, a landowner does not have due process rights to the approval or rejection of a proposed future use. Manna Funding, LLC v. Kittitas Cnty., 173 Wn.App. 879, 896, 295 P.3d 1197 (2013) (no constitutionally protected property interest in proposed rezone use); Durland v. San Juan Cnty., 182 Wn.2d 55, 340 P.3d 191 (2014) (zoning code height and size limitations do not create a constitutionally protected property interest in denial of proposed building that adversely impacts third party's water views).

Although the procedures needed to satisfy constitutional thresholds vary according to the nature of the property interest at stake, due process essentially requires the opportunity to be heard at a meaningful time and in a meaningful manner. Post v. City of Tacoma, 167 Wn.2d 300, 313, 217 P.3d 1179 (2009). Under both the state and federal due process clauses, the constitutional adequacy of a claimant's right to be heard is determined by balancing three factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L. Ed. 18 (1976); Post, 67 Wn.2d at 313.

(2) Substantive due process

The leading Washington case on both takings and substantive due process analysis is Presbytery of Seattle v. King Cnty., 114 Wn.2d 320, 787 P.2d 907 (1990). Following that...