A question of democracy - land-use and property rights law in Washington State

National Review, June 17, 1996 by Joseph Dundin

THE defeat last November of Washington State's property-rights referendum may tempt one to think that the issue is dead in the Evergreen State. Washington is Ecotopia, after all, with more Birkenstock sandals per capita than Sweden has, and a tradition of radicalism going back to IWW days. So forget property rights in Washington, right?

Not quite. The stereotype applies mainly to Seattle and other cities around Puget Sound. In the late 1980s, this region's temperate climate and spectacular scenery, coupled with an economic boom the government had not managed to kill, were attracting newcomers fast enough to scare the people already here. Those for whom recycling is a religion demanded that something be done about ''uncontrolled growth.'' The result was a series of enactments known as the Growth Management Act, which requires the state's larger counties to plan, in exhaustive and politically correct detail, for future increases in population. As implementation goes forward, voters in other parts of the state are beginning to realize what they surrendered for the sake of peace in Latte Land: not only property rights, but indeed control of their local governments.

The answer, at once draconian and incoherent, came the following year. The 1991 amendments to the GMA require counties (which are designated as ''regional governments'') to adopt county-wide planning policies binding on the cities within them. Cities are to be involved in the ''collaborative process'' of developing them (the mechanics of that process were not specified until 1994). The governor is empowered to withhold revenue from any entity that fails to comply. Such sanctions would quickly bankrupt any local government, so there has been a scramble to get into compliance. Legislative courts known as Growth Management Hearings Boards were set up to resolve disputes.

The description alone suggests difficulties. Under Washington State's constitution, land-use regulation is a local police power: cities exercise it within their limits, and counties exercise it within unincorporated areas. As amended, the GMA empowers counties to adopt planning policies binding on the cities. The amendments include a disclaimer: ''Nothing in this section shall be construed to alter the land-use powers of the cities.'' But the amendments would be meaningless if they did not alter the land-use powers of the cities. In fact, ''shall be construed'' seems to be the operative phrase: it is an invitation to the courts to look the other way and ignore a conflict between the statute and the state constitution. As we shall see, the Washington State Supreme Court has taken the bait.

Under the amended GMA, counties are ''recognized'' as regional governments. But Washington's constitution provides for regional governments, and requires that they be approved by majority vote. The GMA makes no provision for voter approval, and no such vote has been held in any of the affected counties.

The ''collaborative process'' for developing county-wide planning policies, furthermore, collides with the ''one-man/one-vote'' interpretation of the Fourteenth Amendment, which requires equal representation of voters within any governmental unit. City voters in Washington vote in both city and county elections. As long as city and county governments perform different functions, this is not a problem. Within the ''collaborative process'' of GMA planning, however, each city voter has two votes to the one of each exurban voter in the same county.

The legislature sought to remedy this problem in 1994. The solution it came up with was weighted voting -- by governments, however, not by voters. Agreements among local governments are declared to be effective when adopted by the county and a simple majority of the cities containing at least 75 per cent of the county's total population. Yet in Board of Estimate v. Morris, the United States Supreme Court found that a much more nuanced scheme of weighted voting violated the equal-protection clause. At least one lower court has understood Morris as a rejection of weighted voting in any form.

The first court challenges to GMA planning arose out of situations in which local voters circulated referendum petitions to reverse GMA planning decisions, and the county governments that had made those decisions sued the petitioners. Washington's constitution guarantees the right of referendum, and so do the charters of all home-rule counties in the state. But subjecting GMA implementation to local referendum would undermine the Act's purpose of removing the planning process from local control. Realizing this, and relying on legal arguments that were imaginative in the worst possible sense, Washington's Supreme Court held in Whatcom County v. Brisbane that referendum rights do not exist under the GMA.

As originally enacted in 1990, the GMA directed county and city governments to achieve ''consistency'' with the policies of adjoining jurisdictions. A basic question was left unanswered: How were they supposed to do that? This question arises from a contradiction at the heart of growth planning. The idea is to avoid low-density development -- ''sprawl'' -- at least until gaps in high-density urban areas have been filled in. But sprawl is the result of individual choices: low-density development happens because people want to live in low-density areas. And local elected officials are not going to stand in the way of what people want. So how was this contradiction to be resolved?

In Snohomish County v. Anderson -- another referendum case -- and Postema v. Snohomish County, the court ducked the more fundamental question: Does the GMA violate the Washington constitution, the federal Constitution, or both? The court's maneuvering took place against the background of City of Lynnwood v. Central Puget Sound Growth Management Hearings Board. This case appeared to be something of a put-up job. The underlying dispute had been settled, and the plaintiff -- the city government -- pursued the case no more energetically than it had to to keep it from being dismissed. Lynnwood's purpose, it appears, was to provide the court with a rationale for not deciding constitutional challenges to the GMA brought by individual citizens. The court accepted the invitation in Anderson, hinting that only government challenges to the GMA were justiciable.

That charade ended earlier this year. In December, Chelan County filed separate actions in the Washington Supreme Court and in federal district court, seeking an interpretation of the GMA. Predictably, the Washington Supreme Court ducked again, dismissing the state action for lack of jurisdiction. But the court also dismissed Lynnwood, choosing finally to notice that there was nothing left to decide in that case.

Chelan County is a different sort of government plaintiff. It is located on the ''dry side'' of the state, east of the Cascade Mountains, and its three commissioners answer to a more conservative electorate. However, no such restraint operates on eastern Washington's Growth Management Hearings Board: it is appointed by the governor. In December, the Board found several county ordinances ''not in compliance'' with the GMA. And under 1995 ''regulatory reform'' legislation -- legislation passed by a Republican-controlled state house of representatives -- the Board had a new tool for dealing with what environmental groups have called a ''rogue county'': the Board simply repealed the county's ordinances.

Read that last sentence again. A state board composed of appointed officials repealed ordinances duly adopted by the elected county government. If that can happen, local government has ceased to exist in Washington State.

Why did it take this long for even one county to object? And why did the City of Lynnwood provide cover for state usurpation of local authority? Ideology is part of the answer, but not all of it. The GMA is a grab-bag of goodies for the political classes generally. Both city and county governments receive GMA grant money. Also, each government is made less accountable: since planning policies are agreed to by contract between governments, each government can blame the others -- or the Growth Management Hearings Board -- for unpopular policies.

The state legislature, meanwhile, is out of the line of fire. If it had imposed regional planning directly, it could have stayed within the bounds of the state constitution, which provides that local land-use powers must yield to ''general laws'' -- that is, to state laws. However, planning at the state level would have involved numerous politically unpalatable choices. Rather than make them, the legislature has located decision-making power in a political Twilight Zone, accessible only to planners, government lawyers, and other ''experts.''

This loss of voter control is the more profound evil of the GMA, transcending even the dilution of property rights. And it is, as the Marxists would say, no accident. In the view of planners and environmentalists, voters at the local level make the wrong choices more often than not. The GMA gets rid of the ''fragmentation and parochialism'' of traditional zoning by getting rid of voter control.

As the Chelan County litigation heats up in federal court, watch for property rights to re-emerge as an issue here. This time, two new questions will be on the table with it: How was local government abolished in Washington State? And, Why did the Washington Supreme Court look the other way while it was happening?