A Doctrine Adrift: Land Use Regulation and the Substantive Due Process of Lawton v. Steele in the Supreme Court of Washington

Abstract

Although substantive due process theory has lost much of its force as a local policymaking tool in the federal courts, the doctrine has played a significant role in the land use policies of Washington State. Relying on an ancient U.S. Supreme Court case, Lawton v. Steele, the Supreme Court of Washington has declared that legislation permitting government to pass the social costs of low-income housing demolition on to individual developers through development impact fees is "unduly oppressive" on those individuals and thus violates substantive due process. This Comment argues that the substantive due process doctrine the Supreme Court of Washington has applied is irrelevant under the Federal Constitution and inconsistent with Washington constitutional jurisprudence. Moreover, the Comment asserts that the substantive due process theory of Lawton v. Steele inappropriately permits courts to delve into the policymaking role of legislators.