Daily Development for
Wednesday, October 15, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

ZONING AND PLANNING; PROCEDURE; APPEAL: Reviewing court has no authority to modify condition to development set forth by board of county commissioners and may only remand to board for further consideration.

Snider v. Board of County Comm'rs of Walla Walla County, 932 P.2d 704 (Wash. Ct. App. 1997).

As a condition to approving a proposed development, a board of county commissioners required the developer to widen a road, requiring the developer to acquire rights-of-way from third-party owners. The developer appealed to the Washington Superior Court, which ruled that the board's action was arbitrary and capricious. The Superior Court also modified the condition by requiring the board to condemn the rights-of-way and required the developer to deposit with the board an amount necessary to pay for the required acquisitions and improvements.

The Washington Court of Appeals reversed, holding that the Superior Court had no authority to modify the condition, and in any event, the board's action was not arbitrary and capricious. By requiring the board to exercise its eminent domain power, the Superior Court violated the separation of powers doctrine by usurping the legislative power of eminent domain, a "core function" of the legislative branch and the board. Although the Superior Court could order a condition to be modified or removed, it had no power to modify the condition itself and instead should have remanded the condition for further consideration.

The court also reversed the "arbitrary and capricious" finding because the board "did not wilfully disregard the facts and circumstances" concerning the road and traffic. The Court of Appeals also rejected the developer's argument that the board's condition constituted a Fifth Amendment taking under Dolan v. City of Tigard, 512 U.S. 374 (1994) and Sparks v. Douglas County, 904 P.2d 738 (Wash. 1995). A taking occurred in those decisions when the government required landowners to dedicate their property to public use. In this case, the board required that the developer acquire rights-of-way from others, but not that the developer provide those rights to the county. Therefore, the board failed to destroy any "fundamental attribute of ownership" necessary to establish a taking. Although a taking can also occur when government action destroys a property's economic viability, the court noted that the developer had failed to advance that argument.

Comment: This trial court really went overboard in its review functions. But it is not unheard of for a court to order the granting of a variance or other zoning relief when it concludes that the agency below has not made the proper case for refusal. Where there is animus or, perhaps, incompetence, this might be an appropriate response. But in many such cases the court grants a zoning benefit that properly ought to be within the discretion of the zoning authority. Such actions frequently raise the same "separation of powers" issue involved in this case.

In zoning law generally, the courts in some jurisdictions seem to have developed a "common law" of zoning that imposes conditions and establishes judicial authority that are beyond the relevant provisions of state statutes and constitutions. It often is difficult to discern where such courts derive their legitimacy. Perhaps the situation is best explained by the fact that courts often are mistrustful of the treatment of individual cases by local politicians and adopt a broader, "equitable" position in such cases even when their function technically is limited to interpretation and application of statutes and state and federal constitutions.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.