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Washington Supreme Court Finds “Community Bill of Rights” Affecting, Inter Alia, Zoning to Be Outside Initiative Power

Spokane Entrepreneurial Center v. Spokane Moves to Amend the Constitution, 2016 WL 455957 (Wa.) involved the successful gathering of signatures to put a “Community Bill of Rights,” as an amendment of the Spokane Charter, to send the matter to the voters of the city. Petitioners filed a declaratory judgment challenging the validity of the proposal. The trial court found petitioners had standing to challenge the validity of the proposal and that, on the merits, the proposal exceeded the initiative power. The Washington Court of Appeals made the opposite rulings on these issues and ordered the matter to be put to a vote. The Washington Supreme Court accepted review and posed the questions to be 1) whether petitioners had standing, and 2) whether the initiative was beyond the initiative power.

As to standing in this declaratory judgment action, the court required that the interest sought to be protected be “arguably with in the zone of interests to be protected or regulated” by the statute or constitutional provision at issue. The court also required that a potential plaintiff must show the challenged action caused an “injury in fact, economic or otherwise, to the party seeking standing.” Under the Washington Constitution, there is a process for state initiative measures; however local initiatives are governed solely by statute, under which local governments may establish their own processes. Moreover, Washington case law shows that courts are loathe to interfere prematurely with the initiative process, generally limiting such review to procedural challenges (such as sufficiency of the number of signatures and ballot titles) and whether the matter is proper for direct legislation. The court thus rejected the heightened standing requirements of the Court of Appeals, focusing on the adverse effect on the plaintiffs instead, emphasizing that it would generally not deal with the validity of the proposal in a pre-election setting but would consider issues relating to procedures and the fitness of the measure under the initiative process. One of the elements of the proposed measures sought to give water rights to the Spokane River, to which some of the plaintiffs had rights. Similarly, developers that would be required to go through an additional community approval process for major developments also had standing. In both instances, plaintiffs alleged sufficient injury to provide standing.

As to whether the proposals were within the scope of the initiative power, the court said that power is limited to matters within the authority of the city and affirmed the trial court ruling that all four proposals were not so limited, as they either dealt with non-legislative matters or were otherwise outside the authority of the city. If a matter were administrative in nature, or if statutory law reposes authority in the mayor and council, or if the city does not have authority to undertake the action proposed in the initiative, then the proposal may not be sent to the electorate.

Spokane River

This proposal would require large developments to receive voter approval in the neighborhood; however, there is already a statutory scheme for city development approvals and modification of those processes that is administrative in nature. Another proposal would give the Spokane River the legal rights to “exist and flourish” and city residents the rights to access and use that river, which the trial court found in conflict with state law, which provides a process for water rights to that river (part of the aquifer for which lies outside the state). Another provision purports to give employees rights against employers, thereby expanding constitutional protections and conflicting with state law. Finally, another provision would strip the legal rights of any corporation that violated the rights secured in the measure. Although its authors saw this proposal to be an antidote to the notion that corporations have rights under the federal constitution, the trial court ruled that this provision conflicted with state and federal law. The court thus affirmed the trial court order striking the measure from the ballot.

The wording and structure of the Washington Constitution differs from Oregon and it does not necessarily follow that the result of similar challenges would be identical, or that an Oregon court would undertake pre-election review. Given the fairly detailed procedures for local land use regulation, it might be difficult to impose additional requirements in the local process, especially in the light of the 120 or 150 day time limitations provided by Oregon statutes. But it could be a wild ride in the meantime.

Spokane Entrepreneurial Center v. Spokane Moves to Amend the Constitution, 2016 WL 455957 (Wa.).

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We regularly update clients about changes in real estate law and on industry trends. This includes briefing clients on legislative proposals in the federal tax, housing and other legal areas affecting their businesses. Staying current enables you to anticipate and prevent legal problems as well as capitalize on new developments.
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