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Washington Supreme Court: Growth Board Can't Grow Its Powers

How much growth is "too much," and who gets to make that decision under Washington law?  In Thurston County v. Western Washington Growth Management Hearings Board, No. 80115-1 (Aug. 14, 2008), the Washington Supreme Court issued an interesting -- but highly technical -- ruling on the issue that provides some insight into the issue.  The bottom line: counties have great discretion when adopting their growth plans, and Growth Management Hearings Boards should not establish statewide growth policies.

Under the Growth Management Act, Washington counties are required to draw boundaries  around urban areas (Urban Growth Boundaries) to limit how much development may occur outside of these boundaries.  Under the GMA, these boundaries must be "sufficient" to allow for projected population growth.  Thurston County adopted its first comprehensive plan in 1995, and updated it, including the urban growth boundary, in 2004.  In the update, the County relied on population estimates developed by the regional planning council (which was based on state population projections).  The urban growth boundaries adopted by the County exceeded the projected need for developable land (see pages 19-23 of the opinion for the reasons why).

An environmental group challenged the plan, and the Western Washington Growth Management Hearing Board determined the County violated the GMA.  The Board ruled the size of the urban growth areas exceeded the capacity necessary to accommodate future population, and the County had not adequately explained why.  The Board also ruled that regulations setting the size of the growth areas violated two of the nonprioritized Growth Management Act goals.  The Washington Court of Appeals affirmed, but the Supreme Court reversed. 

First, it held that only those portions of the revised comprehensive plan that were revised could be challenged.  Slip op. at 13-15  The court based this decision on the need for finality in land use decisions.  "Finality is important because '[i]f there were not finality, no owner of land would ever be safe in proceeding with development of his property.'"  Slip op. at 15 (quoting Deschenes v. King County, 521 P.2d 1181 (Wash. 1974), overruled in part by Clark County Pub. Util. Dist. No. 1 v. Wilkinson, 991 P.2d 1161 (Wash. 2000)).

Second, the court held the county's urban growth boundary designation "cannot exceed the amount of land necessary to accommodate the urban growth projected...plus a reasonable land market supply factor."  Slip op. at 25.  The Board and the court of appeals had determined that an urban growth boundary designation could only exceed the projected need if the County expressly explained why.  The Supreme Court rejected that result, holding "[t]he GMA does not support this ruling. A comprehensive plan is presumed valid upon adoption, and the petitioner has the burden of demonstrating the plan fails to comply with the GMA."  Slip op. at 26. The court held [t]he GMA does not require a county to explicitly identify a land market supply factor or provide justifications for adopting such a factor in the comprehensive plan." Id.

Turning to the question of whether exceeding the projected urban growth was reasonable, the court rejected the Board's bright-line rule of 25%, and held that the counties have the discretion, not the Board:

[I]n determining whether a market supply factor is reasonable, a board must recognize counties have great discretion in making choices about accommodating growth and the  land  market supply factor may be based on local circumstances.  RCW 36.70A.110(2).  A board shall not find a county's use of a land market supply factor unreasonable unless it is shown to be clearly erroneous in light of the entire record.  

Slip op. at 28.  The court also considered densities for rural development, and held that the Board could not use a bright-line rule to "delineate between urban and rural densities, nor may it subject certain densities to increased scrutiny. Slip op. at 35.

Read the entire opinion here.

Zoning Inspectors Need A Warrant

An interesting Sixth Circuit case summarized on Law of the Land by Professor Patty Salkin, Jacob v. Township of West Bloomfield, 531 F.3d 385 (6th Cir. July 3, 2008), which held that zoning inspectors are required by the Fourth Amendment's search and seizure clause must obtain a warrant if the zoning ordinance they are purporting to enforce can lead to criminal prosecution. 

I won't go into the details of the decision since Professor Salkin analyzes the case here, but the case is important since many zoning ordinances are criminal or quasi-criminal in nature.  The primary penalties for violation of Maui County's zoning ordinance, for example, are criminal, with the administrative enforcement process serving as an alternative -- or additional -- process. 

In Jacob, the property owner was actually prosecuted criminally, but the court held that this was not the determinative factor, and that a zoning inspector is not subject to the warrant requirement only if she is conducting a search for "purely administrative purposes."  Slip op. at 4.  The mere threat of criminal prosecution is enough to trigger the need to obtain a warrant.  The court spelled out other factors that led to the conclusion that a warrant should have been obtained:

Defendant specifically targeted his investigation at Plaintiff after receiving a complaint about the conditions of Plaintiff’s property, and he continued to single-out Plaintiff for continuing intrusions as Plaintiff failed to comply with the land use ordinance. Defendant did not search Plaintiff as part of a “routine inspection that is part of a periodic or area inspection plan.” Similarly, Plaintiff testified that he would frequently discover Defendant searching his property without any advance warning whatsoever; in other words, Defendant’s investigations were “conducted by surprise.”

Slip op. at 4-5 (citation omitted).

New Jersey: Blight Not Right

In a case a lot of folks have been following, a New Jersey appellate court yesterday struck down an attempt to declare properties "blighted."  Turns out these properties in a residential neighborhood which was proposed to be cleared for luxury condos were not in fact blighted, or at least the government had not proven that they were.  The court remanded the case to the trial court since the city had not established the case that there was "substantial evidence of blight."  City of Long Branch v. Anzalone, No. A-0067-06T2 (N.J. Super. Aug. 7, 2008).  This decision follows up on the New Jersey Supreme Court's decision in Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 924 A.2d 447 (N.J. 2007), which held that "blight" means more than “not fully productive.”

The opinion is posted here.  A summary of the case from New Jersey Eminent Domain Law blog is posted here.  The authors of that blog are counsel for one of the property owners, so the briefs are posted here. The Institute for Justice has information on the case here as well.

Opposition To Reconsideration Motion In Maui Affordable Housing Exaction Case

The property owner has filed its brief in opposition to the County of Maui's motion for reconsideration of the court's recent decision in the federal court challenge to the County's 40-50% affordable housing exaction, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.  We wrote about the case earlier here (contains a link to the complaint), and analyzed the legal problems with the ordinance under state law here.

Zoning Can Regulate Use Of Property, Not Ownership

A noteworthy case from the North Carolina Court of Appeals about the limits of Euclidean zoning.  Although the decision was issued in March 2008, it seems no one else has posted on the case, so we will. 

In City of Wilmington v. Hill, 657 S.E.2d 670 (N.C. Ct. App. 2008), the court struck down a local ordinance that required the owner of a garage apartment to reside either in the main residence or the apartment.  When his permit to build a garage apartment was denied and he was cited for violation of the ordinance, the property owner asserted the owner-occupancy requirement was an unconstitutional regulation of his ownership of the property.

Relying on Graham Court Assoc. v. Town of Chapel Hill, 281 S.E.2d 418 (N.C. Ct. App. 1981), the court held that while the zoning power extends to regulating the use of property, it does not allow the government to control "the manner in which property is owned."  In that case, the court held that the government had no legitimate reason to deny a permit to convert an apartment complex from unitary ownership to condominiums in a zoning district where multi-family residential use was an allowable use, because "[t]he change in ownership from a single owner to multiple owners did not alter the property's character as to multi-family residential use." 

The Broadus court applied that rule to the owner-occupancy requirement for garage apartments, and held the requirement had "no foundation in reason and bears no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense."  The court declined to follow Anderson v. Provo City Corp., 108 P.3d 701, 706 (Utah 2005) and  Kasper v. Town of Brookhaven, 142 A.D.2d 213, 220-21 (N.Y. 1988), which upheld owner-occupancy requirements from constitutional challenges.  The court noted these decisions are from other jurisdictions and it had no obligation to follow them, especially in light of the Graham Court rule:

In the instant case, the property in question is located in a district that is zoned for single-family residences; however, garage apartments are permitted as an accessory use, incidental and subordinate to the principal use as a single-family residence. See WLDC § 18-179 (2005). Garage apartments also are allowed in certain multi-family districts in connection with conforming single-family residences within the district. See WLDC § 18-285 (2005). Plaintiff only is entitled to regulate the use of defendant's single-family residence with the accessory use of a garage apartment, not the ownership.

(emphasis original).  Thanks to my Damon Key colleague Greg Kugle for sending this case my way.

County Motion For Reconsideration in Maui Affordable Housing Exaction Case

The County of Maui has asked the federal court to reconsider its recent order granting in part and denying in part the County's summary judgment motion.  A Maui property owner challenged the County's "workforce housing" exaction ordinance, which requires a property owner to commit 40% to 50% of the units in most new housing developments to below-market-rate ownership or rental.  Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.  The plaintiff challenged the ordinance under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the government to show a substantial nexus between the exaction and some problem caused by the property owner before the government may demand tribute as a condition of development, and that the exaction is roughly proportional to the problem.

The court held that the plaintiff's Nollan/Dolan claims are takings claims that are not ripe under Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985).  The district court's lengthy opinion held that despite labeling its claim as one under the "unconstitutional conditions doctrine," the claim was a facial takings claim which is subject to Williamson County's requirement that the plaintiff first seek -- and be denied -- compensation via state procedures.  The court allowed the remaining federal claims to go forward.  Professor Patty Salkin summarized the opinion on her Law of the Land blog here.

The County's current motion argues the court committed a "manifest error of law" when it did not dismiss the plaintiff's substantive due process and equal protection claims.  The County argues that the plaintiff bears the burden of proof on both claims under rational basis review, and it cannot meet that burden as a matter of law.  The County's motion and supporting memorandum are posted here.

CFC: No "Border Patrol" Servitude

In D & D Land Holdings v. United States, No. 06-877L (filed under seal: June 25, 2008, reissued: June 30, 2008), the Court of Federal Claims held the landowner's claim that the Border Patrol's activities on its land resulted in a compensable Fifth Amendment taking was not barred by the six-year statute of limitations, and that the landowner had a property right to keep Border Patrol agents off its property.  The CFC denied the federal government's motions to dismiss and for summary judgment. The court summarized the plaintiff's complaint:

[P]laintiff claims that defendant’s construction of a border fence between the United States and Mexico resulted in the channeling of illegal immigrants onto its property “where they can be rounded up, arrested, and deported.”  According to plaintiff, Border Patrol agents utilize its property for these purposes on an “almost daily” basis.

Slip op. at 1 (citiation omitted).  The most interesting part of the decision was the court's treatment of the government's argument that the landowner did not possess a recognized property interest in keeping Border Patrol agents off its property:

Defendant asserts that plaintiff does not possess a compensable property right to exclude Border Patrol agents from the subject property “because the entry by the Border Patrol under such circumstances is an exercise of the United States’ police power[,] which has traditionally not been viewed as giving rise to a claim for compensation.” According to defendant, the Border Patrol’s activities on the subject property are non-compensable “because property ‘seized by the  government under its police power does not constitute property seized for  ‘public use’ within the meaning of the Fifth Amendment.’” Id. at 27 (quoting Seay v. United States, 61 Fed. Cl. 32, 35 (2004)). Furthermore, defendant argues that “[e]ven if Plaintiff possesses a compensable property right to exclude the Border Patrol from its property, its factual allegations . . . do not state a claim upon which relief can be granted,” because the Border Patrol’s entry onto the subject property “is a traditional exercise of the government’s police power,” id. at 29; accord Def.’s Reply 12 (stating that the Border Patrol is authorized to enter onto private lands within twenty-five miles of the international border for the purpose of patrolling the border and that plaintiff acquired title to its property “subject to the existence of the Border Patrol’s right to access the property to patrol for illegal aliens”).

Slip op. at 19 (citations and footnote omitted). The court correctly rejected the argument, although with little analysis.  See slip op. at 19-20.  The government essentially asserted a
Border Patrol easement or servitude which would give it an absolute right to trespass on private property without compensation.  But this has never been the law. 

If you think about it, accepting the government's argument would essentially write the Takings Clause out of the Constitution, except for those instances where the government is affirmatively attempting to exercise eminent domain.  If an assertion that the government was immune from having to provide compensation because it was exercising the "police power" was all that was necessary to dismiss an inverse condemnation claim in the CFC, there wouldn't be much left of the Tucker Act, either.  The CFC does not have jurisdiction to consider eminent domain lawsuits where the federal government is attempting to take property, nor does it have jurisdiction to declare a government action invalid, it only has jurisdiction to award compensation.   The validity of the government's actions must be presumed before a CFC claim for compensation is ripe, and a property owner who wants to challenge the Border Patrol ability to enter its property needs to go to a district court, not the CFC.  If the Border Patrol's action was not pursuant to its "police power," it can't do it. Thus, rather than immunizing the government from a claim for compensation, an assertion that the trespasses were accomplished pursuant to the police power is actually the landowner's ticket to the CFC and a claim for compensation.

Read the entire CFC opinion here.

Protesting Eminent Domain Abuse

An interesting story in the LA Times about eminent domain abuse and free speech in St. Louis, Missouri, "Political protest hits a brick wall."  The story details the conflict between a property owner who commissioned a two-story mural on the side of a building that says "End Eminent Domain Abuse" and city officials who have asked a federal court to hold that it violates the city's restrictions on the size of signs.  The owner claims its not the size that offends the city mothers and fathers, but the message.  The story has a great big photo of the mural, so you can decide for yourself.

Nollan/Dolan Challenge to Maui's 50% Housing Exaction Is A Takings Claim Subject To Williamson County

Relying on Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), the US District Court for the District of Hawaii today denied a property owner's motion for summary judgment in a case challenging the County of Maui's "workforce housing" exaction ordinance.  Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE.

The ordinance requires a property owner to commit 40% to 50% of the units in most new housing developments to below-market-rate ownership or rental.  A property owner subject to this exaction challenged the ordinance under the Nollan/Dolan doctrine of unconstitutional exactions, which requires the government to show a substantial nexus between the exaction and some problem caused by the property owner before the government may demand tribute as a condition of development.  The exaction must also be roughly proportional to the problem.  See this post for more on the nexus analysis.

I posted on the case earlier here (contains a link to the complaint), and analyzed the legal problems with the ordinance under state law here.

The district court's lengthy opinion held that despite labeling its claim as one under the "unconstitutional conditions doctrine," the claim was a facial takings claim which is subject to Williamson County's requirement that the plaintiff first seek -- and be denied -- compensation via state procedures. 

More to follow after I've had a chance to review the 59 page opinion in more detail.

Professor Tribe on Wilkie v. Robbins: Death by a Thousand Cuts

I've finally had a chance to read the article posted on SSRN by Professor Laurence Tribe about the Supreme Court's decision in Wilkie v. Robbins, 127 S. Ct. 2588 (2007), "Death by a Thousand Cuts: Constitutional Wrongs without Remedies after Wilkie v. Robbins." 

The essay explores the incentives created by Wilkie v. Robbins for intentional circumvention of the Takings and Just Compensation Clauses by federal agents and addresses the dangers thereby created for any meaningful protection of private property sought by the Federal Government, as well as the dangers created for the meaningful protection of other constitutional rights against deliberate erosion by federal agents.

I posted a summary of the case here, and published an op--ed in the Honolulu Advertiser about the decision.