Ultra Vires Land Use Regulations: A Special Case in Substantive Due Process

The U.S. Supreme Court’s land use jurisprudence establishes that arbitrary land use regulations violate the doctrine of substantive due process. Ultra vires land use regulations-those regulations that exceed the delegated authority of the regulating agency under state law-represent a particular type of arbitrary land use regulation. Lower federal courts that have examined such regulations are split on the question whether they violate substantive due process. This article contrasts two federal court of appeals cases in which property owners alleged that a local government agency deprived them of property without due process of law by enforcing an ultra vires land use regulation against them. The article concludes that, consistent with Supreme Court precedent, ultra vires land use regulations must violate the substantive due process rights of the individuals whom they affect

Ultra Vires Land Use Regulations: A Special Case in Substantive Due Process

The U.S. Supreme Court’s land use jurisprudence establishes that arbitrary land use regulations violate the doctrine of substantive due process. Ultra vires land use regulations-those regulations that exceed the delegated authority of the regulating agency under state law-represent a particular type of arbitrary land use regulation. Lower federal courts that have examined such regulations are split on the question whether they violate substantive due process. This article contrasts two federal court of appeals cases in which property owners alleged that a local government agency deprived them of property without due process of law by enforcing an ultra vires land use regulation against them. The article concludes that, consistent with Supreme Court precedent, ultra vires land use regulations must violate the substantive due process rights of the individuals whom they affect

Is It Time to Bury Barry? Why an Old Change at the Legislature Requires a New Look at Washington\u27s Nondelegation Doctrine

Fifty years ago, the Supreme Court of Washington adopted a relaxed version of the nondelegation doctrine in a case called Barry and Barry v. Department of Motor Vehicles. The Barry rule, which only loosely restricts the delegation of policy-making power from the Legislature to other bodies, is now widely applied in Washington State. However, the Barry Court’s reasons for adjusting the nondelegation doctrine were based on an outdated understanding of the Legislature, especially its regular session schedule. While the Legislature’s regular sessions have changed since 1972—becoming longer and more frequent due to constitutional amendment—the Court has not considered how these changes in legislative operations may have undermined Barry’s lax approach to the delegation of legislative authority. Washington courts should take a fresh look at the Barry rule in the light of today’s legislative realities. A nondelegation doctrine that better aligns with the activities of the modern Legislature would help preserve the separation of powers in Washington State