BIAW FILES AMICUS BRIEF

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.

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 //

//BRIEF from page 10

the cost because the City did not know that it was violating constitutional law.

ASK THE PASTOR

This decision is comically bad because, while the City may not have known constitutional law, the pastor for the Church certainly did. He explained the problem to the City long before a judge told the City he was right. The Supreme Court has taken up the case to ask “whether the City of Tacoma is liable for damages because it knew or should have known its action was unlawful.”

“BIAW filed an amicus brief in this case because the Court of Appeals decision effectively gutted the statute that provides damages when a builder is wronged by a permitting body. Specifically, the Court of Appeals said Tacoma was not responsible for damages as the City did not know it was violating constitutional law. This is wrong

because ignorance is not excuse for violating

someone’s constitutional rights,” said BIAW General Counsel Jackson Maynard.

“Under Washington state law, litigants are entitled to having their expenses paid as damages when they are forced to litigate their constitutional rights and prevail.”

HOLDING GOVERNMENT ACCOUNTABLE

BIAW’s brief for the Washington Supreme Court argued that the Court of Appeals got it wrong. It does not matter whether the City tried to get the law right. The question is what the city should have known. What would the facts and law have led a reasonable city to do in Tacoma’s situation? Holding the permitting bodies to this standard is the only way a claim for damages could succeed. If an agency was able to avoid liability simply by having multiple meetings before reaching an illegal conclusion, builders would never be able to get attorney’s fees refunded under RCW 64.40.020. //COSTS from page 6

NAHB SPRING LEADERSHIP MEETING: WASHINGTON, D.C.

If you are planning to attend NAHB’s Spring Leadership Meeting & Legislative Day on the Hill, please contact Jan Himebaugh at (360) 3527800 as soon as possible. BIAW is scheduling a day of meetings with your members of Congress and want to ensure everyone who wants be is included. We look forward to having our members meet and talk with our representatives on issues facing our industry, such as trade tariffs, workforce labor, energy codes and more. After a day of Capitol Hill office visits and meetings, we will conclude with an evening reception.

STRATEGIC PLAN TO BE PRESENTED

BIAW will host a retreat to review the results of our strategic planning focus groups and to finalize the drafting of the strategic plan. The plan will then be presented for comments and approval during the summer board meeting, June 21 at the Yakima Convention Center.

Don’t forget to mark your calendar for the BIAW cornhole tournament, as well as the ever popular Spike Party: A Night at the Movies! Come dressed as your favorite movie character and you might win a prize. I hope to see you all there.

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