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US SUPREME COURT
BIAW FILES AMICUS BRIEF PERMITTING AGENCIES NEED SOME ACCOUNTABILITY TO GO WITH THEIR POWER As every cartoon-bad-guy has taught us, power without accountability is a recipe for disaster. In the building industry, permitting agencies exercise make-or-break power over builders, but are difficult to hold accountable when they abuse that power. State statute, RCW // JACKSON MAYNARD 64.40.020, General Counsel provides a // HANNAH MARCLEY check on Associate Counsel permitting agencies’ power and is the only mechanism for a builder to sue a permitting agency for an illegal decision and have their attorney’s fees paid.
WHERE IT ALL BEGAN
This unchecked power is central to the case Church of the Divine Earth v. City of Tacoma. In September, the Court of Appeals held that is a permitting authority tried to make the right decision on a permit, it was not responsible for damage it caused or the lawsuit the builder had to bring to prove they were right. This decision takes permitting agencies from powerful to unstoppable.
BUILDING INSIGHT BIAW.com
GOVERNMENT’S DEMANDS UNCONSTITUTIONAL
In that case, the Church of the Divine Earth bought a parcel in Tacoma zoned for single-family, residential use. The Church intended to build a parsonage there for its pastor. The parcel, platted over 100 years ago, is an odd shape, sticking out into the street much farther than its neighbors. When the Church applied for a permit to build the parsonage, the City refused to issue the permit unless the Church gave the City the strip of land along the road to make the Church’s parcel uniform with its neighbors. This requirement was an “unconstitutional condition.” The Constitution requires that conditions placed on a permit are designed to cure problems the permitted activity will create or worsen, not just a way for the government to demand whatever it wants from a property owner. Because the plat was an odd shape, with or without a parsonage on it, the parsonage did not create or worsen the difficulties created by the plat’s shape. After over a year of litigation, the court finally held that preventing the Church from building a parsonage as a way of forcing them to give up land to the state was unconstitutional. It seemed like justice would prevail. Under RCW 64.40.020, the Church should have been able to get its litigation expenses back from the City for being forced to litigate its constitutional rights. Instead, the Court of Appeals said that the City was not responsible for See BRIEF on page 11 //
