Daily Development for
Tuesday, January 26, 2000
By: Patrick A. Randolph,
Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu
ZONING AND PLANNING;
SUBSTANTIVE DUE PROCESS; "ANCILLARY USE" REQUIREMENT: Condition
imposed by zoning ordinance that a "helistop," for which conditional
use permit was sought, be a "necessary element" of business of the
party seeking the permit was within the city's power; it was rationally related
to a legitimate government purpose of promoting safety and controlling noise.
Development Services of America v. City of Seattle, 979 P.2d 387 (Wash.
1999). Plaintiff sued the City of Seattle following the city's denial of its
conditional use permit for a helistop. The city held that under the zoning
ordinance, the permit for a helistop would only be granted upon a showing that
the helistop was a "necessary element of the applicant's business
services." The hearing examiner decided to award a conditional use permit,
which decision the city council then reversed. The city council, substituting
its own judgment for that of the hearing examiner, found that no factual error
existed and therefore refused to provide additional hearings.
Plaintiff sued arguing
that the city had no basis for making such a decision and denying the conditional
use permit was not within the city's police power. Instead, the Supreme Court
of Washington held that such a requirement was rationally related to legitimate
government purposes, including providing safety and controlling noise. It affirmed the city's conclusion that
"necessary element" betokens a requirement for a more significant
relationship to the owner's business than for a business than a test of
"convenience," efficiency," or even "reasonable
necessity."
The court indicated that,
although the impacts of the heliport activity could be mitigated, the noise and
safety concerns raised by the activity still remained, and the requirement that
the heliport be a "necessary element" of the landowner's business
bore a rational relationship to the city's objectives to reduce exposure to
such safety and noise dangers. In a strong dissent, Justice Sanders, noted that
the issue of a private business necessity had absolutely no logical relation to
noise and safety and stated that "the majority openly invites the
governing authority to regulate the private affairs of our citizens by
substituting the coercive power of the state for the free choice of individuals
in the conduct of the private affairs shorn of public consequence."
Comment 1: At one time,
this case would not have occasioned even mention here, since the "rational
basis" test for substantive due process is so broad that almost any
justification is sufficient to warrant zoning decisions. But is the wind
shifting? The dissent points to a number of recent cases in which Washington
courts have struck down zoning decisions on the basis that the decisions didn't
make sense in light of the public objectives involved. The editor has
researched these cases to be certain they meet the criteria claimed by the
dissent, but they are recent cases that appear to establish a "mini
trend" in Washington to look carefully at attempts by government to
"plan for the sake of planning."
Comment 2: On the
"rationality" score, unfortunately, the editor must side with the
majority. On the basis of noise and
safety concerns, the city rationally could conclude it should limit the number
of heliports, but not prohibit them altogether. Clearly the overall number of
heliports will be reduced if the only ones permitted are those that are
necessary elements of the owner's business. This is a rational way of rationing
the available public supply of heliport opportunities.
Readers are urged to respond, comment, and argue with the daily
development or the editor's comments about it.
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