Washington Law Review


Mark K. Funke


The last time the Washington Supreme Court applied substantive due process in a land use case was in Mission Springs, Inc. v. City of Spokane in 1998. Since then, the Washington Law Review has published four commentaries that address substantive due process in Washington land use, all of which characterize Washington's substantive due process law as producing undesirable results. However, none of the available commentary takes into consideration that there are two types of substantive due process cases in Washington land use. In one type, courts strike down local ordinances, while in the other they enforce the lawful application of ordinances by executive decisionmakers. This Comment argues that the Washington Supreme Court should apply procedural due process analysis to cases involving executive decisionmaking, such as Mission Springs, because these cases are procedural in nature. This Comment also argues that commentators are misguided when they compare the evils of Lochner-era substantive due process to executive decisionmaking cases. Applying a procedural due process analysis would encourage beneficial outcomes, while escaping the stigma associated with substantive due process.

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