Legal Issues for Washington HPCs: Police Power, Land Use, and Property Rights, Lecture notes of Law

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Legal Issues for

Washington

HPCs

Dan Corson for NAPC

U. S. Constitution

Bill of Rights

10th Amendment

“The powers not delegated to the United

States by the Constitution, nor prohibited by

it to the States, are reserved to the States

respectively, or to the people.”

James Madison

In general...

The police power may be exercised,

provided it :

• is intended for the public good;
• is not aimed to affect only one individual

or only one parcel of land;

• is not clearly arbitrary and unreasonable;

and

• has a reasonable relation to the public

health, safety, morals, peace and quiet or

general welfare.

ASK:

Is there a rational basis for the city

council’s ordinance?

This doesn’t mean every person must

believe it makes sense, only a few

“rational” citizens.

“If the board’s decision is unwise but does not violate substantive due process, plaintiff’s remedy lies in the political arena; simply put, if unhappy, plaintiffs may campaign to throws the rascals out.”

The People ex rel. Klaeren v. The Village of Lisle , 316 Ill. App. 3d 770, 786 (2000)

The Police Power and Land Use

Control in Washington

• Cities and counties are generally granted broad police powers to enact ordinances with respect to any subject which appears necessary and proper for the security, general welfare and convenience of the municipality.
• Council-Manager Cities: Council may provide that the mayor may point, subject to council’s confirmation, members of a city planning commission and other boards advisory to the city council.

The Police Power and Land Use

Control in Washington

• Mayor-Council Second Class Cities: Mayor makes

appointments at the mayor’s pleasure.

• Counties: In board of county commissioners

counties, that board appoints advisory board members. In charter counties, the executive makes recommendations which the council reviews and makes the appointments.

Constitutional Protection of Persons

and Property

5th Amendment “No person shall be... deprived of life, liberty, or property, without due process of law.. .”

14th Amendment “... Nor shall any state deprive any person of life, liberty, or property without due process of law... “

Washington Constitution

Article 1, Section 3: No person shall be

deprived of life, liberty, or property,

without due process of law.

Washington Constitution

Article 2, Section 16: No private

property shall be taken or

damaged for public or private use

without just compensation

having first been made …

Takings

Eminent Domain

• The legal process by which a public body (and certain private bodies) are given the legal power to acquire private property for a use that has been declared to be public by constitution, statute or ordinance

Regulatory Takings

“The general rule, is that while property may be

regulated to a certain extent, if regulation goes too far it will be recognized as a taking. Pennsylvania Coal Co. v. Mahon (1922) Justice Oliver Wendell Holmes

Regulatory Takings

“Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power.” Pennsylvania Coal Co. v. Mahon (1922)