1061
Tie Goes to the Landowner: Ambiguous
Zoning Ordinances and the Strict
Construction Rule
Daniel A. Himebaugh*
“It will be of little avail to the people that the laws are made by men of their own
choice if the laws be so voluminous that they cannot be read, or so incoherent that
they cannot be understood.”1 The Federalist No. 62.
I. Introduction
Ed Arness ran a logging business in Apple Tree Cove, on the Puget
Sound.2 Arness quickly discovered that he needed a place to keep his
timber after harvesting it.3 So he put the logs on trucks, drove across
his property, and deposited the logs on nearby tidelands for temporary
storage.4 Arness knew that the county’s zoning code did not expressly
prohibit him from storing logs in the tidelands.5 In fact, the tidelands
were not covered under county zoning at all.6 Arness’s problem, however, was that the property over which he drove his trucks to reach the
tidelands was zoned only for residential use, not logging.7 Did Arness
violate the county zoning code by driving his logging trucks across his
residential property to access the tidelands?
Next consider the case of Standard Mining and Development Corporation. Standard wanted to operate a gravel mine on some property it
owned in Auburn, Washington, but the city would not allow gravel mining unless Standard assented to several restrictive conditions.8 Standard
*Attorney at Pacific Legal Foundation’s Pacific Northwest Regional Office; J.D.,
cum laude, Pepperdine University School of Law, 2009; M.P.P., Pepperdine University
School of Public Policy, 2008; B.A., summa cum laude, Hillsdale College, 2004. Mr.
Himebaugh thanks Pacific Legal Foundation Principal Attorney R.S. Radford for his
helpful input and review.
1. The Federalist No. 62, at 381 (James Madison) (Clinton Rossiter ed., 1961).
2. Hauser v. Arness, 267 P.2d 691, 693 (Wash. 1954).
3. See id.
4. See id.
5. See id.
6. Id. at 694.
7. Hauser, 267 P.2d at 694-95.
8. State ex rel. Standard Mining & Dev. Corp. v. City of Auburn, 510 P.2d 647, 648
(Wash. 1973).
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challenged the conditions because the Auburn zoning code did not expressly govern the property where the gravel mining would take place.9
Yet the city argued that its zoning code governed mining everywhere,
even in places not actually covered by the code.10 Could the city regulate gravel mining on Standard’s unclassified property?
These cases (both of which I will discuss in more detail)11 call attention to one of the most perplexing threats to private property rights
under zoning—the regulation of property through ambiguous rules.
Ambiguous zoning ordinances open the door for ad hoc interpretation
of imprecise code language,12 which inevitably frustrates the plans of
private property owners.13
9. Id. at 649.
10. Id.
11. See infra Parts III, IV.
12. “The administration of zoning ordinances is ‘flexible.’ This means that the zoning ordinance confers discretion on the zoning body to decide whether it should grant
the land use approvals it authorizes.” Daniel R. Mandelker, Entitlement to Substantive
Due Process: Old versus New Property in Land Use Regulation, 3 Wash. U. J.L. &
Pol’y 61, 75 (2000); see also Kenneth B. Bley & Tina R. Axelrad, The Search for
Constitutionally Protected “Property” in Land-Use Law, 29 Urb. Law. 251, 262, 264
(1997). But an ambiguous zoning code does not set clear parameters, and therefore creates the opportunity for inequitable application of the code. Cf. Yick Wo v. Hopkins,
118 U.S. 356, 373 (1886) (explaining that ordinance which authorizes officials to act
with unbounded discretion must be pronounced “inoperative and void”). Moreover,
“[a]s desirable as zoning schemes may be, zoning is an exercise of the police power that
imposes restrictions ‘in derogation of common-law property rights’ by placing limitations on the uses to which a property owner can put his or her property.” Elliot Gardner,
Note, To Defer or Not to Defer: Judicial Review of Zoning Board Decisions in New
York, 2 Cardozo Pub. L. Pol’y & Ethics J. 421, 425-26 (2004) (quoting In re Toys
“R” Us v. Silva, 676 N.E.2d 862, 867 (N.Y. 1996)).
13. Zoning can injure a property owner in many ways. A zoning ordinance might
dramatically restrict an owner’s use, so as to constitute a regulatory taking. See Lucas v.
S.C. Coastal Council, 505 U.S. 1003, 1014 (1992) (“If . . . the uses of private property
were subject to unbridled, uncompensated qualification under the police power, ‘the
natural tendency of human nature [would be] to extend the qualification more and more
until at last private property disappear[ed].’ ” (bracketed alteration in original) (quoting Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)); San Diego Gas & Elec. Co. v.
City of San Diego, 450 U.S. 621, 652 (1981) (Brennan, J., dissenting) (“Police power
regulations such as zoning ordinances and other land-use restrictions can destroy the
use and enjoyment of property in order to promote the public good just as effectively as
formal condemnation or physical invasion of property.”); Pa. Coal Co., 260 U.S. at 415
(“[I]f regulation goes too far it will be recognized as a taking.”). A zoning ordinance
might also arbitrarily deprive a property owner of his property rights in violation of due
process. See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 542 (2005). Due process
typically asks “whether a regulation of private property is effective in achieving some
legitimate public purpose.” Id. at 542 (emphasis in original). “[A] regulation that fails
to serve any legitimate governmental objective may be so arbitrary or irrational that
it runs afoul of the Due Process Clause.” Id.; see also Cnty. of Sacramento v. Lewis,
523 U.S. 833, 846 (1998) (stating Due Process Clause protects against “the exercise of
power without any reasonable justification in the service of a legitimate governmental
objective”).
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Ambiguous Zoning Ordinances
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Courts have long recognized that zoning ordinances are prone to
mischief.14 Thus, courts have traditionally safeguarded property owners against ambiguous zoning by applying a “strict construction rule,”15
which provides that ambiguous zoning ordinances must be strictly construed in favor of property owners.16 For some time now, however, the
14. “ ‘The slow development of zoning in the United States has been attributed
to . . . the tendency of our courts . . . to preserve and protect individual rights in the
use of property from the arbitrary control of municipalities.’ ” Gardner, supra note 12,
at 425 n.31 (alteration in original) (quoting E.C. Yokley & Douglas Scott MacGregor, Zoning Law and Practice, § 1-4 (4th ed. 2000)). Additionally, Professor
Arnold notes that many commentators have criticized the “land use regulatory system . . . as wasteful or inefficient, captured by self-seeking private interests, abusive
of individual rights, fragmented and chaotic, ill-informed, racist, class-biased, undisciplined, and environmentally destructive.” Craig Anthony Arnold, The Structure of the
Land Use Regulatory System in the United States, 22 J. Land Use & Envtl. L. 441,
443-44 (2007). Likewise, Professor Garnett has argued that “when property is over-or
misregulated, property regulations may impede efforts to restore a vibrant, healthy, and
organic public order.” Nicole Stelle Garnett, Ordering (and Order in) the City, 57 Stan.
L. Rev. 1, 5 (2004).
15. R. Perry Sentell, Jr., Statutes in Derogation of the Common Law: In the Georgia
Supreme Court, 53 Mercer L. Rev. 41, 42 n.4 (2001) [hereinafter Sentell, Statutes in
Degrogation of the Common Law].
Statutes which impose duties or burdens or establish rights or provide benefits which
were not recognized by the common law have frequently been held subject to strict,
or restrictive, interpretation. Where there is any doubt about their meaning or intent
they are given the effect which makes the least rather than the most change in the
common law.
Id. (citing 3 Sutherland, Statutory Construction 171 (N.J. Singer, 5th ed.
1992)); see also United States v. Rodgers, 461 U.S. 677, 716 n.5 (1983) (Blackmun, J.,
concurring in the result in part and dissenting in part) (“It is a well-recognized rule of
statutory construction, flowing from a strong policy of respecting traditional property
rights, that legislative grants of the takings power may be found in legislation only by
express provision or necessary implication.”).
16. A majority of jurisdictions have applied the strict construction rule, or some
variation of it. See, e.g., Ex parte Fairhope Bd. of Adjustment & Appeals, 567 So.
2d 1353,1355 (Ala. 1990); Cnty. of Cochise v. Faria, 212 P.3d 957, 959 (Ariz. 2009);
Benton Cnty. Stone Co., Inc. v. Benton Cnty. Planning Bd., 288 S.W.3d 653, 658 (Ark.
2008); Hartley v. City of Colo. Springs, 764 P.2d 1216, 1221 (Colo. 1988); Mandelstam
v. City Comm’n of S. Miami, 539 So. 2d 1139, 1140 (Fla. D. Ct. App. 1988); City of
Douglasville v. Willows, Inc., 224 S.E.2d 363, 364 (Ga. 1976); Waikiki Marketplace
Inv. Co. v. Chair of Zoning Bd. of Appeals of Honolulu, 949 P.2d 183, 194 (Haw. Ct.
App. 1997); King v. De Kalb Cnty. Planning Dep’t, 917 N.E.2d 36, 41 (Ill. Ct. App.
2009); Town of Merriville v. Public Storage, Inc., 568 N.E.2d 1092, 1097 (Ind. Ct. App.
1991); City of New Hampton v. Blayne-Martin Corp., 594 N.W.2d 40, 45 (Iowa 1999);
VanGundy v. Lyon Cnty. Zoning Bd., 699 P.2d 442, 446 (Kan. 1985); Bellemeade Co.
v. Priddle, 503 S.W.2d 734, 742 (Ky. Ct. App. 1973); Flex Enterp., Inc. v. City of New
Orleans, 780 So. 2d 1145, 1150 (La. Ct. App. 2001); Town of Union v. Strong, 681
A.2d 14, 18 (Me. 1996); Fremont Twp v. McGarvie, 417 N.W.2d 560, 562 (Mich. Ct.
App. 1987); Amcon Corp. v. City of Eagan, 348 N.W.2d 66, 72 (Minn. 1984); St. Louis
Cnty. v. Taggert, 866 S.W.2d 181, 182 (Mo. Ct. App. 1993); Whistler v. Burlington
N.R.R. Co., 741 P.2d 422, 424 (Mont. 1987); Nesbit v. City of Albuquerque, 575 P.2d
1340, 1342 (N.M. 1977); Toys “R” Us v. Silva, 676 N.E.2d 862, 867 (N.Y. 1996); In re
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Fall 2011
rule has been overshadowed by judicial deference to zoning controls,
with some courts treating the rule like an annoying leftover from an era
when zoning was less complicated.17 This has created an uncomfortable
disconnect between the courts’ purported approach to land use disputes
under the strict construction rule and actual judicial outcomes.18
This Article traces the rise and inchoate fall of the strict construction
rule in Washington state. In Part I, I briefly discuss the importance of
property rights and highlight some basic property rights that Washington courts have recognized. In Part II, I touch on statutory construction.
In Part III, I recount how the strict construction rule came to be applied
in Washington. Part IV singles out some cases in which the courts seem
to abandon the strict construction rule. Finally, in Part V, I show that the
strict construction rule has survived judicial neglect, and I give reasons
why courts should not avoid applying the rule in future cases.
II. The Setting: Property Rights
The strict construction rule is, first and foremost, an acknowledgement
of the primary place that property rights occupy in land use law. Property rights are important; indeed, “[p]roperty is at the heart of many of
the most important aspects of human life—from our desire for privacy
to our need for fellowship, from our wish to create places where we
can be ourselves to our need to provide for the future in case of emer-
W.P. Rose Builders Supply Co., 163 S.E. 462, 500 (N.C. 1932); Saunders v. Clark Cnty.
Zoning Dep’t, 66 Ohio St. 2d 259, 261 (Ohio 1981); City of Tulsa v. Mizel, 265 P.2d
496, 498 (Okla. 1953); Cnty. of Clatsop v. Rock Island Constructors, 482 P.2d 541, 543
(Or. 1971); Cleaver v. Bd. of Adjustment, 200 A.2d 408, 411 (Pa. 1964); Earle v. Zoning Bd. of Warwick, 191 A.2d 161, 164 (R.I. 1963); Edwards v. Allen, 216 S.W.3d 278,
284 (Tenn. 2007); Patterson v. Utah Cnty. Bd. of Adjustment, 893 P.2d 602, 606 (Utah
Ct. App. 1995); Appeal of Weeks, 712 A.2d 907, 910 (Vt. 1998); Ramsey v. Bd. of
Zoning Appeals of Front Royal, 68 Va. Cir. 135, 137 (Va. Cir. Ct. 2005); Cohen v. Dane
Cnty. Bd. of Adjustment, 246 N.W.2d 112, 114 (Wis. 1976); Snake River Brewing Co.
v. Town of Jackson, 39 P.3d 397, 402 (Wyo. 2002). But see Sentell, Statutes in Derogation of the Common Law, supra note 15, at 45 n.12 (“ ‘About one-third of the states
have enacted general interpretive legislation abrogating the rule of strict interpretation
of statutes in derogation of the common law.’ ”) (quoting 3 Sutherland, Statutory
Construction 198 (1992)).
17. See, e.g., Dev. Servs. of Am., Inc. v. City of Seattle, 979 P.2d 387, 392 (Wash.
1999). Zoning ordinances have not always been as complex as they are today. In fact,
New York City’s first comprehensive zoning resolution, adopted in 1916, was less than
100 pages long and dealt only with the core issues of zoning—segregating incompatible
uses and establishing building height and bulk standards. Howard Goldman, Inclusionary Housing in New York City’s Zoning Resolution, 11 City L. 73 (2005); see also
Garnett, supra note 14, at 16 (remarking on “ ‘thickness’ ” of zoning code book).
18. See Dev. Servs., 979 P.2d at 387.
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Ambiguous Zoning Ordinances
1065
gency.”19 A solid system of property rights is therefore advantageous to
fostering a good society.20
Fundamentally, property rights create a sense of individual selfownership, a sphere of personal dominion where other people may not
tread.21 This is what John Locke referred to when he wrote that “[e]very
man has a property in his own person: this no body has any right to but
himself. The labour of his body, and the work of his hands, we may
say, are properly his.”22 The Declaration of Independence eloquently
summarized this philosophy in establishing that government exists to
protect individual rights, such as property rights, which form the basis
of social order.23
Some people use their property to express themselves and to join
together in common cause.24 For many religious groups, for example,
having a private place to meet is crucial for sustaining a sense of fellowship and for furthering the group’s mission. Thus, private property
rights underlie two of the most significant constitutional rights—the
right to assemble25 and the right to practice religion freely.26
Private property rights also provide the best form of social security.27
Implicit in the concept of property ownership is the expectation that
the owner may later transfer his or her property to another person in
exchange for value. This is why people buy homes, land, precious metals, antiques, art, securities, collectibles, and myriad other investments
that act as a safety net for retirement or emergencies.28 Without private
property, people would be dependent on the government for their basic
19. Timothy Sandefur, Cornerstone of Liberty: Property Rights in 21stCentury America 9 (2006).
20. See Terry Easton & Ashton Ellis, Refounding America: A Field Manual
for Patriot Activists 19-23 (2010) (providing an accessible and concise summary of
the political philosophy underlying the concept of private property rights).
21. See Sandefur, supra note 19, at 22.
22. John Locke, Second Treatise of Government 19 (C.B. Macpherson, ed.,
Hacket Publ’g Co., Inc. 1980) (1690) (emphasis in original).
23. The Declaration of Independence para. 3 (U.S. 1776) (“That to secure these
rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”). See also Wash. Const. art. I, § 1 (“All political power is inherent in the people, and governments derive their just power from the consent of the
governed, and are established to protect and maintain individual rights.”).
24. Sandefur, supra note 19, at 24. (“Whether it be an antique car club, or a political party, or a sports team, or a church, people use private property to ‘huddle’ together
and share their interests.”).
25. U.S. Const. amend. I.
26. Id.
27. See Sandefur, supra note 19, at 29.
28. See id.
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needs, destroying individuals’ ability to insure against loss, discouraging work, and decreasing freedom.
Another benefit of private property rights is that they allow for the accumulation of capital, so that entrepreneurs can amass resources to start
businesses or invent technologies that benefit society.29 But this idea has
not caught on everywhere. Economist Hernando de Soto writes that many
Third World countries, which seemingly have the natural resources to
support vibrant economies, have failed to do so because they lack a legal
structure that allows capital accumulation.30 In places where legal concepts like land titles and contracts are not predictably or consistently recognized or enforced, even the most eager entrepreneur will not take the
risk of starting a business if he cannot be sure that his investment will be
protected.31 Property rights allow people to describe, transfer, protect, use,
and invest their resources.32 Property rights also give people legal recourse
when another individual, or the government, interferes with those rights.33
Political thinkers since Aristotle have recognized that only through
protecting a system of private property rights will individuals have the
incentive to be productive.34 This, in turn, creates a society in which
wealth is generated, commerce can thrive, and people enjoy a high standard of living. Nobel Laureate Friedrich Hayek went so far as to say
that property rights or
[t]he understanding that . . . men can use their own knowledge in the pursuit of their
own ends without colliding with each other only if clear boundaries can be drawn
between their respective domains of free action, is the basis on which all known
civilization has grown.35
29. See id. at 35.
30. See id. (citing Hernando de Soto, The Mystery of Capital 47 (2000)).
31. See id. at 35-36.
32. See Sandefur, supra note 19, at 35-36.
33. See id.
34. See Aristotle, The Politics 61 (Carnes Lord, ed., trans., 1984).
[Legislation abolishing private property] has an attractive face and might be held
humane; he who hears of it accepts it gladly, thinking it will produce a marvelous
affection in all for each other, especially when it is charged that the ills that now exist
in regimes come about through property not being common—I am speaking of lawsuits against one another concerning contracts, trials involving perjury, and flattery of
the rich. Yet none of these things comes about because of the lack of partnership [in
property], but through depravity. For it is precisely those who possess things in common and are partners whom we see most at odds, not those who hold their property
separately; but those at odds as a result of their partnerships are few to observe in
comparison with those who own possessions privately. Further it is only just to speak
not only of the number of ills they will be deprived of by being partners, but also the
number of goods. Indeed, it is a way of life that appears to be altogether impossible.
35. Sandefur, supra note 19, at 32 (quoting F.A. Hayek, Law, Legislation and
Liberty: Rules and Order 107 (1973)).
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Ambiguous Zoning Ordinances
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Conversely, societies that do not protect private property are notoriously less prosperous and less free than those that do.36
Like most American jurisdictions, Washington courts have generally
accepted the idea that private property rights are worth protecting. A
number of recent Washington Supreme Court cases have outlined the
scope of those rights. In Manufactured Housing Communities of Washington v. State of Washington,37 the court acknowledged that property
owners retain the “fundamental” rights to “possess” private property,
“exclude” others from it, and to transfer that property to other people.38
The court also included the rights to “acquire,” “protect,” and “occupy” property as rights deserving legal recognition.39 Additionally,
in Margola Associates v. City of Seattle,40 the court expanded on its
non-exhaustive list of property rights by identifying the right “to make
some economically viable use of property” as a fundamental attribute
of property ownership.41
In recognizing these attributes of property ownership as “property
rights,” the court has defined the legal entitlements of property owners.
These rights form the common law background against which the strict
construction rule operates. The rule is thus consistent with the basic
premise of land use law in Washington, which states that “an individual
should be able to utilize his own land as he sees fit.”42
36. Id. at 34. One problem in such societies is the “tragedy of the commons,” which
expresses the idea that “when property is not owned by anyone in particular, or when
people using property do not have to pay for the damage they do to it, nobody will take
responsibility for the costs of maintaining it.” Id.
When land is unowned, or is owned by some abstract ‘public,’ people using that
property have less reason to preserve it; they may as well exploit it to satisfy their momentary desires. On the other hand, when property is privately owned, the owner and
his guests are more likely to practice wise stewardship and protect it for the future.
Id.
37. Manufactured Hous. Cmtys. of Wash. v. State, 13 P.3d 183 (Wash. 2000).
38. Id. at 187 (holding law that required mobile home park owners to give right of
first refusal to tenants before selling a mobile home park deprived park owners of a
fundamental attribute of property ownership and thus constituted a taking). This is the
same triumvirate of property rights that the court recited in its important takings case
Guimont v. Clarke, 854 P.2d 1, 9 (Wash. 1993). See also Robinson v. City of Seattle,
830 P.2d 318, 328 (Wash. 1992); Presbytery of Seattle v. King Cnty., 787 P.2d 907, 912
(Wash. 1990).
39. Manufactured Hous. Cmtys. of Wash., 13 P.3d at 191-92; see also State v. Vander
Houwen, 177 P.3d 93, 97 (Wash. 2008).
40. Margola Assocs. v. City of Seattle, 854 P.2d 23 (Wash. 1993).
41. Id. at 36.
42. W. Main Assocs. v. City of Bellevue, 720 P.2d 782, 785 (Wash. 1986).
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III. How to Use the Strict Construction Rule
The Supreme Court of Washington has set out the strict construction
rule as follows:
[Z]oning ordinances are in derogation of the common-law right of an owner to use
private property so as to realize its highest utility. Such ordinances must be strictly
construed in favor of property owners and should not be extended by implication to
cases not clearly within their scope and purpose.43
The strict construction rule is a rule of statutory construction, so the
first step in understanding how the rule works is recognizing when to
employ it.
The basic formula is that a court will construe a statute only if the
statute is ambiguous.44 “A word is ambiguous if it has more than one
meaning and it is unclear which meaning is intended.”45 A sentence
composed of ambiguous words produces an ambiguous idea. And linguistic ambiguity begets legal ambiguity, so that a zoning ordinance is
ambiguous if its terms admit more than one meaning, yet it is unclear
which meaning is intended.46
43. Sleasman v. City of Lacey, 151 P.3d 990, 992 n.4 (Wash. 2007) (quoting Morin
v. Johnson, 300 P.2d 569, 571 (Wash. 1956)).
44. Morell E. Mullins, Sr., Coming to Terms with Strict and Liberal Construction, 64
Alb. L. Rev. 9, 43-44 (2000).
It is elementary that the meaning of a statute must, in the first instance, be sought in
the language in which the act is framed, and if that is plain . . . the sole function of the
courts is to enforce it according to its terms.
Where the language is plain and admits of no more than one meaning the duty of
interpretation does not arise and the rules which are to aid doubtful meanings need
no discussion.
Id. (alteration in original) (quoting Caminetti v. United States, 242 U.S. 470 (1917)).
“Where there is no ambiguity, there is no need for either a liberal or strict construction.”
Id. at 45 (quoting S.C. Produce Ass’n v. Comm’r., 50 F.2d 742, 744 (4th Cir. 1931)).
45. Randy E. Barnett, Restoring the Lost Constitution: The Presumption
of Liberty 119 (citing E. Allen Farnsworth, “Meaning” in the Law of Contracts, 76
Yale L.J. 939, 953-56 (1967)).
46. Zoning ordinances are especially prone to ambiguity (and hence manipulation)
because they are characteristically complex. R. Perry Sentell, Jr., Local Government
Law, 47 Mercer L. Rev. 225, 261 (1995) (“Few local government functions are as
controversial, or complex, as that of zoning.”). “[T]he more complex [zoning] becomes,
the more inaccessible it becomes to most people and the more susceptible to interpretation and implementation by a handful of professionals, public officials and the courts.”
Goldman, supra note 17, at 76. Some commentators even question the theory of zoning
altogether. For example, John Mixon and Kathleen McGlynn write that,
[P]lanners and local governments are philosophically incapable of creating an
ideal, preplanned urban environment by (1) drawing maps or constructing detailed
written descriptions of an end-state land use future, and (2) adopting regulations
to force land uses into idealized patterns. . . . [L]and use is a nonlinear, complex,
adaptive, dynamical system that cannot be analyzed, predicted, and controlled by
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Ambiguous Zoning Ordinances
1069
To construe an ambiguous zoning ordinance is to search out a single
governing meaning from the ambiguous text.47 To construe an ambiguous zoning ordinance “strictly,” as the strict construction rule directs,
means to refrain from drawing inferences that do not arise from the
text’s necessary implications.48 As one court explained,
a linear cause-and-effect formula, such as ‘plan, then zone.’ As a complex system,
land use exhibits characteristics of chaos, emergence, and catastrophe, with the result
that actual development patterns cannot be quantified, calculated, or predicted.
John Mixon & Kathleen McGlynn, A New Zoning and Planning Metaphor: Chaos and
Complexity Theory, 42 Hous. L. Rev. 1221, 1223-25 (2006). Even the planners have
their doubts: “The search for never-ending specificity has resulted in ordinances that are
more like secret codes than development codes.” Ric Stephens, Civic Responsibility, 79
Planning Commissioners J. (2010).
47. Traditional rules of statutory construction include the “canons of construction,”
some of which are commonly known by Latin labels, such as inclusio unius est exclusio
alterius (“the inclusion of one implies the exclusion of others”), and noscitur a sociis (“a
word is known by the words with which it is associated”). Antonin Scalia & Bryan A.
Garner, Making Your Case: The Art of Persuading Judges 45-46 (2008).
“[S]trict and liberal construction are simply among those tools of statutory construction
that are used when there is ambiguity, or uncertainty—and hence, doubt—about the
‘meaning’ of statutory text.” Mullins, supra note 49, at 80. “The fabled canons of statutory interpretation traditionally advance the overarching imperative that courts selectively afford some statutes a stricter than ordinary construction. Statutes ‘in derogation
of the common law’ claim predominating prominence among enactments deserving of
the counseled judicial disposition.” Sentell, Statutes in Derogation of the Common Law,
supra note 15, at 41-42.
No construction maxim carries greater substantive potential than the imperative that
‘statutes in derogation of the common law must be strictly construed.’ Because by nature most statutes purport to change the existing order, the derogation canon’s theoretical range is virtually universal. A state court, thus, possesses unlimited discretion
in selecting cases for the maxim’s application and in determining its role in resolving
the cases selected. As it exercises that discretion over time, a court necessarily tailors
the derogation canon to measurements markedly unique for its own jurisdiction. The
derogation jurisprudence of each state’s highest appellate court demands the attention of its practicing bar.
Id. at 79.
48. Black’s defines “strict constructionism” as, “The doctrinal view of judicial construction holding that judges should interpret a document or statute (esp. one involving
penal sanctions) according to its literal terms, without looking to other sources to ascertain the meaning.” Black’s Law Dictionary 712 (9th ed., 2009). “The term ‘strict
construction’ obviously connotes a degree of stringency about finding implications and
drawing inferences when working with statutes.” Mullins, supra note 49, at 29. “ ‘It is
only necessary implications that are ever indulged in any case; necessary in the sense of
being the consequential effect of the use of the language employed, and without which
implication the manifest purpose of the statute would fail.’ ” Id. at 31 (quoting Kelly
v. Town of Milan, 21 F. 842, 858 (C.C.W.D. Tenn. 1884)). “ ‘A necessary implication
means not natural necessity, but so strong a probability of an intention that one contrary
to that which is imputed to the party using the language cannot be supposed.’ ” Id. at 36
(quoting Coggins v. Ely, 202 P. 391, 394 (Ariz. 1921)).
“[S]trict construction” allows: (1) implications that are “necessary” because, without
them, the statutory provision makes no textual sense, or cannot have any effect, etc.
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“Strict construction of a statute” is that which refuses to expand the law by implications or equitable considerations, but confines its operation to cases which are clearly
within the letter of the statute as well as within its spirit or reason, resolving all reasonable doubts against applicability of the statute to the particular case.49
Strict construction does not disregard statutory “purpose” for blind literalism, and courts need not ignore common sense if doing so risks an
absurd result.50 But the hallmark of strict construction is that inferences
about a statute’s applicability should be drawn quite carefully, based
mainly on strong implications and immediate context.51
In land use cases, the most fundamental determination that the court
must make is whether the zoning ordinance in question governs the
property owner’s activity at all.52 When a zoning ordinance is ambiguous with respect to its application to the facts at hand, the strict construction rule counsels the court to construe the ordinance not to restrict
(matters ‘inevitably’ implied by express text); or, (2) implications that are
needed to carry out the expressly declared purposes and objects of the statute; or
(3) implications that are needed to carry out—or prevent defeating—obvious (but
not necessarily expressed) purposes of the statute; or (4) implications that are
strongly incidental to what has been expressed; with incidental signifying: (a)
consequences natural to, or (b) predictably resulting or flowing from, or (c) predictably inherent in, or organically associated with, the express language used; or
(5) matters as to which courts should attribute an intention (matters very probably
intended to be included), as collateral or ancillary to the express statutory language, and derivable from the whole statutory text or other indicators of legislative “intention.”
Id. at 36-37 (emphasis omitted).
49. Id. at 20 (quoting Kyritsis v. Fenny, 320 N.Y.S. 2d 702, 704 (N.Y. Sup. Ct. 1971)).
As ways of reading statutory language, strict and liberal construction represent overarching strategies or approaches to the entire language of the relevant statute. If serious about applying a strict or liberal construction to a particular statute, the judge
or lawyer consistently applies a technique of reading that, with a few exceptions,
permeates the entire effort. When strict (and liberal) construction apply to the entire
statute, they become part of the very atmosphere in which the statutory construction
exercise takes place.
Mullins, supra note 49, at 57.
50. See id. at 27.
51. It might help to understand strict construction in relation to liberal construction.
A central, and distinctive, feature of “liberal construction” is that it allows more
latitude for drawing inferences from statutory language. The range of implications
and inferences permissible under a statute which is to be liberally construed is greater
than the range of implications permissible under strict construction. To put it in common terms, liberal construction simply gives a statute more elbow room for the sake
of achieving statutory purposes and goals.
Id. at 38. Of course, even liberal construction presupposes ambiguity. Id.
52. Hauser v. Arness, 267 P.2d 691, 695-96 (Wash. 1954).
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Ambiguous Zoning Ordinances
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the property owner’s activity.53 The strict construction rule thus favors
the property owner’s liberty over zoning controls.54
IV. Establishing the Strict Construction Rule
in Washington
A. Hauser v. Arness—Importing the Rule
Washington courts began to see the virtues of the strict construction rule
in the 1950s. The first published case to adopt the rule was Hauser v.
Arness.55 In sum, the Hausers brought an action to enjoin Arness from
transporting logs over a residentially-zoned area en route to dumping
the logs in tidelands adjacent to the Arness property, alleging that Arness’s logging violated the Kitsap County zoning code and constituted
a nuisance.56
The Hauser court highlighted three important facts: (1) The tidelands
upon which Arness dumped the logs were unclassified by the county
zoning ordinance; (2) the zoning ordinance did not prohibit log dumping in unclassified areas; and (3) the filled portion of Arness’s property, upon which his trucks stood while dumping logs onto the unfilled
tidelands, was completely within the unclassified tideland area.57 The
53. Sentell, Statutes in Derogation of the Common Law, supra note 15, at 42 n.4
(quoting E.T. Crawford, The Construction of Statutes 486-87 (1940)).
Or stated more specifically, statutes of this type should not be construed to modify
or abrogate the common law any further than is expressly stated, or necessarily implied from the language used. In accord with this rule, the common law should not
be deemed changed, unless the language making the alleged change is clear and
unambiguous. Indeed, it is not to be presumed that the legislature intended to make
an innovation on the common law.
Id.
54. It is worth noting that favoring liberty over control makes practical sense, given
the inefficiency of zoning controls to ensure that property is being put to its most efficient use. Mixon and McGlynn make this point when they argue that land use planning
is futile: “[T]he ability to make long term predictions on the basis of abstract propositions and foundational principles is one of the least reliable capabilities of the human
mind. This is especially true when the predictions apply to complex adaptive systems
that can respond dramatically to small, almost imperceptible changes.” Mixon & McGlynn, supra note 51, at 1257.
55. Hauser, 267 P.2d at 692.
56. Id. at 693. The appellate court did not adjudicate the nuisance claim because the
parties stipulated that the manner in which Arness’s operations were conducted did not
differ from similar log dumping operations, and the trial court stated that it was unable
to hold that the log dumping constituted a general nuisance. Id. at 361.
57. Id. at 693-94. In addition to these facts, the court noted that Arness had obtained
the necessary permits from the Army engineers to obstruct navigation with his logging
operations. Id.
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court also noted that accessing the tidelands required Arness to cross
a portion of his residentially zoned parcel, where logging was prohibited by the county zoning code.58 As the court saw it, the real question
was whether Arness could drive his logging trucks across his own land
to the tidelands in front of his property for the purpose of dumping
logs there, without violating the zoning ordinance.59 Arness argued that
nothing in the zoning ordinance prohibited a loaded logging truck from
crossing private property in a residential zone in order to reach an unrestricted zone where it was allowed to dump its load.60 The Hausers,
on the other hand, asserted that the zoning ordinance prohibited Arness
from using the restricted upland portion of his own property as an approach to an unclassified dumping ground.61
The Hauser case is important because it required the court to determine how to deal with a zoning ordinance that was ambiguous with respect to the activity being challenged.62 And since the zoning ordinance
did not expressly prohibit the use of upland property for logging truck
ingress, the court had to decide whether it did so by implication.63 The
court rejected the notion that the ordinance impliedly prohibited the
driving of a logging truck across restricted lands for “one extremely
cogent reason”—because such an interpretation “would raise serious
questions as to the constitutionality of the ordinance.”64
Indeed, the Hauser court explained that construing Kitsap County’s
zoning ordinance to restrict Arness’s logging activities would endanger his due process rights.65 Citing Euclid 66 and Nectow,67 the court reviewed the constitutional groundwork of zoning, stating
The governmental power to interfere by zoning regulations with the general rights
of the landowner by restricting the character of his use, is not unlimited and, other
questions aside, such restriction cannot be imposed if it does not bear a substantial
relation to the public health, safety, morals, or general welfare.68
“Legislatures may not under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private
58. Hauser, 267 P.2d at 693-94.
59. Id.
60. Id. at 695.
61. Id. at 693.
62. See id. at 696-97.
63. Hauser, 267 P.2d at 696.
64. Id.
65. Id. at 696.
66. Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
67. Nectow v. Cambridge, 277 U.S. 183 (1928).
68. Hauser, 267 P.2d at 696-97 (quoting Washington ex rel. Seattle Title Co. v. Roberge, 278 U.S. 116 (1928)).
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Ambiguous Zoning Ordinances
1073
property or the pursuit of useful activities.”69 According to the court,
interpreting the Kitsap County zoning ordinance to imply that Arness
could not drive his logging truck over his own land might have raised a
constitutional problem. Namely, the court understood that prohibiting
Arness from driving his trucks across his property might interfere with
Arness’s constitutionally protected property rights, unless the prohibition was substantially necessary to protect the public health and safety:70
“[I]n order for this court to hold that the ordinance prohibits appellants
from driving their truck across their upland property, we would have to
find that their conduct in driving across the zoned area bears a ‘substantial relation to the public health, safety, morals, or general welfare.’ ”71
Because “[t]he logging business is a lawful business which under ordinary circumstances does not create a nuisance,” and “to conduct their
business profitably, independent loggers must have some means of access to tide water in order to compete with others in the sale of their
product on an open market,” the court doubted that restricting Arness’s
ability to cross his property to reach the tidelands would serve any legitimate public purpose satisfying due process.72 In lieu of deciding the
constitutional question, however, the court concluded that it could simply avoid the due process issue “by giving the language of the ordinance
its ordinary meaning.”73 In other words, the court found that resolving
ambiguity in the zoning ordinance in favor of Arness made resolution
of the due process issue unnecessary.
In concluding that Arness had not violated the zoning ordinance, the
court imported a rule from Maryland,74 providing that
[Zoning] ordinances are in derogation of the common-law right to so use private property as to realize its highest utility, and while they should be liberally construed to accomplish their plain purpose and intent, they should not be extended by implication to
cases not clearly within the scope of the purpose and intent manifest in their language.75
In Hauser, that meant the court would not construe the ambiguous zoning ordinance as prohibiting Arness from traversing his property to
dump logs in the tidelands.
69. Id. at 697 (quoting Roberge, 278 U.S. at 116).
70. Id. at 698.
71. Id. at 698 (emphasis in original).
72. Id.
73. Hauser, 267 P.2d at 698. “Therefore, following the rule which this court has
previously enunciated in such situations, we adopt that interpretation of this ordinance
which avoids the necessity of passing upon these constitutional questions.” Id. (citing
Soundview Pulp Co. v. Taylor, 150 P.2d 839 (Wash. 1944)).
74. See Landay v. MacWilliams, 196 A. 293, 296 (Md. 1938).
75. Hauser, 267 P.2d at 698 (quoting Landay, 196 A. at 296) (bracketed alteration in
original) (emphasis omitted).
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B. Morin v. Johnson—Refining the Rule
Hauser brought the strict construction rule to Washington, but the rule
as announced in Hauser differs from the rule that the Washington Supreme Court adopted soon after deciding Hauser. The case of Morin
v. Johnson76 refined the strict construction rule, fashioning it for future
application.77
Morin owned a Spokane apartment complex, next door to Johnson’s
tire recapping plant.78 Both buildings were located in Spokane’s commercial zone, which prohibited oiled, rubber, or leather goods manufacturing.79 Morin alleged that Johnson’s business violated the zoning
ordinance, constituting a nuisance per se.80 The question, of course,
was whether Spokane’s zoning ordinance governed Johnson’s tire recapping business.81 And because Spokane’s zoning ordinance did not
clearly prohibit tire recapping in the commercial zone, the Morin court
relied heavily on Hauser in holding that the ordinance did not restrict
Johnson’s activities.82 However, the Morin court reframed the rule from
Hauser as follows:
It must also be remembered that zoning ordinances are in derogation of the commonlaw right of an owner to use private property so as to realize its highest utility. Such
ordinances must be strictly construed in favor of property owners and should not be
extended by implication to cases not clearly within their scope and purpose.83
The operative difference is that Hauser referred to liberal construction
of the ordinance in favor of its “purpose,” but Morin provides for strict
construction in favor of the owner’s right to use his property as he desires.84 This seems to tip the balance toward the property owner when
the true meaning of the applicable ordinance is difficult to ascertain.
The Hauser court refused to infer that the Kitsap County zoning ordinance which zoned the upland property residential implied a prohibition against driving a loaded logging truck over private property.85
This interpretation, which resolved doubts about the ordinance’s implications against restricting the property owner’s activities, is strict con76. 300 P.2d 569 (Wash. 1956).
77. See id.
78. Id. at 570.
79. Id.
80. Id.
81. Morin, 300 P.2d at 570-72. The Morin Court explained the tire recapping process, which consists of applying new tread to a previously manufactured tire.
82. Id. at 571.
83. Id.
84. Compare Hauser v. Arness, 267 P.2d 691, 698 (Wash. 1954), with Morin, 300
P.2d at 571.
85. Hauser, 267 P.2d at 698.
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Ambiguous Zoning Ordinances
1075
struction.86 The Morin rule merely restated the Hauser conclusion as
a positive statement (“zoning ordinances must be strictly construed”),
rather than stating the rule in the negative (“courts must refrain from
extending ambiguous zoning ordinances by implication”).87
Both Hauser and Morin reached the same result, with the court holding that the property owner’s activity is not restricted by an ambiguous
zoning ordinance.88 But the Morin version of the rule is a more accurate
description of how Washington courts must construe ambiguous zoning
ordinances—strictly, so as not to apply a doubtful restriction to activity
that is otherwise perfectly lawful.
V. The Courts Depart from Strict Construction
A. State ex rel. Standard Mining and Development
Corp. v. City of Auburn—No Regulatory Stone
Unturned
Morin was the final word on the strict construction rule in Washington
for decades. The Washington Supreme Court, however, began to deviate from the rule in the 1970s. Beginning with State ex rel. Standard
Mining and Development Corp. v. City of Auburn,89 the court started
to lose sight of the idea that property owners must be protected from
ambiguous zoning ordinances.90
In Standard Mining, the city imposed conditions on a permit issued
to conduct a gravel mining operation.91 Standard Mining challenged the
permit conditions as arbitrary and capricious under Auburn’s zoning
code because, as all parties admitted, the area where the mining would
occur was unclassified under the city’s zoning ordinances.92 The government argued that the zoning code was intended to govern mining permits without regard to whether the mining area was classified or not.93
The court agreed.94 In coming to this conclusion, the court cited Hauser
86. See supra Part II.
87. See Morin, 300 P.2d at 571. Morin also cited City of Tulsa v. Mizel, 265 P.2d
496 (Okla. 1953) (applying strict construction rule to find that retail display of oil well
supplies did not constitute pipe and oil field supply yard) and Kubby v. Hammond, 198
P.2d 134 (Ariz. 1948) (concluding that automobile wrecking plant was not an industrial
use under Phoenix zoning code) in support. Morin, 300 P.2d at 571.
88. See Morin, 300 P.2d at 571; Hauser, 267 P.2d at 698.
89. 510 P.2d 647 (Wash. 1973).
90. See id.
91. Id. at 648.
92. Id. at 649.
93. Id.
94. Standard Mining, 510 P.2d at 651.
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for the proposition that zoning ordinances should be liberally construed
to accomplish their purpose and intent95—a conclusion clearly at odds
with the holding of Hauser and the reformulation of the strict construction rule in Morin. The court then explained, surprisingly, that Auburn
must have intended to regulate the use of all land within the city limits,
even land that it did not classify through its zoning code.96 Therefore,
Auburn intended to allow the excavation of gravel only under conditions imposed by the city.97
The idea that a city intends to control all uses of property within its
borders, even those properties not governed by the zoning code, cuts
against the notion that a landowner is legally entitled to use his property
as he pleases. The court should have treated Auburn’s zoning ordinance
as ambiguous because it did not expressly address Standard’s land, thus
creating two possible interpretations—either mining conditions did not
apply to unclassified property or conditions applied because Auburn
generally regulated gravel mining within its borders. Because neither
meaning could be resolved from the plain language or necessary implications of the zoning ordinance, the strict construction rule instructed
the court not to apply the ordinance against Standard Mining.98 Instead,
the court ignored the controlling rule and allowed Standard’s activities
to be restricted.
B. Development Services of America, Inc. v. City
of Seattle—Property Rights in a Tailspin
Things got worse for the strict construction rule in 1999, when the Supreme Court of Washington decided Development Services of America,
Inc. v. City of Seattle.99 In that case, Seattle denied Development Services a conditional use permit for a rooftop helistop because it was not
a “necessary element” of Development Service’s business.100 The city’s
code required applicants for helistop permits to show that their proposed helistop was a “necessary element of the service provided by
the business establishment to which it is accessory.”101 In appealing the
city’s decision, Development Services argued that the city’s application
95. Id.
96. Id.
97. Id.
98. Cf. Sleasman v. City of Lacey, 151 P.3d 990, 992 n.4 (Wash. 2007) (discussing
strict construction rule in holding city tree retention ordinance did not apply to Sleasmans’ property).
99. Dev. Servs. of Am., Inc. v. City of Seattle, 979 P.2d 387 (Wash. 1999).
100. Id. at 388.
101. Id. at 391.
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Ambiguous Zoning Ordinances
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of the ordinance was overly restrictive, and thus, unlawful, because the
city construed its ordinance as requiring Development Services to show
that it would be harmed to the point of going out of business without
a helistop.102 In support of its position, Development Services cited the
strict construction rule, asking the court to construe the city’s ordinance
in its favor.103
The court declined, finding that substantial evidence supported the
city’s determination that the helistop was not “necessary” for Development Service’s business, but merely convenient and efficient.104 The
court then characterized Development Service’s citation to the strict
construction rule as “unpersuasive,” mainly because the court found
that the city’s zoning ordinance was not ambiguous.105 Moreover, the
court putatively “overruled” the strict construction rule in dicta by stating that, “[T]he law does not require strict construction in favor of the
landowner. So long as the proposed use is within the scope of the ordinance, a zoning ordinance is construed to effectuate its plain purpose
and intent.”106 The court found that the purpose and intent of the city’s
ordinance was to limit the use of helistops in the city, and that the ordinance did so by requiring applicants to show necessity, which the court
defined in relation to restrictiveness—because the ordinance’s purpose
is to restrict, it cannot be read to permit a helistop where it is only “reasonably necessary,” but an applicant must show that it is “essential.”107
Justice Sanders’ dissent in Development Services reasoned that the
city should have granted the permit because the term “necessary,”
which the city’s zoning code did not define, was ambiguous and that
ambiguity in the zoning ordinance should be strictly construed in favor
of Development Services.108 As Justice Sanders explained, “necessary”
can have various meanings, including “reasonably necessary,” or “convenient,” based on standard dictionary definitions.109 From this, he concluded that the record indicated that the helistop could be “necessary”
to Development Service’s business because “it would be convenient
and would make business more efficient and competitive to have one
102. Id. at 391-92.
103. Id. The court noted that Development Services cited Mall, Inc. v. City of Seattle, 739 P.2d 668, 672 (Wash. 1987), a case in which the court affirmed its acceptance
of the strict construction rule.
104. Dev. Servs., 979 P.2d at 392.
105. Id.
106. Id. (citing Mall, Inc., 739 P.2d at 668) (emphasis in original).
107. Id. at 392-93.
108. Id. at 393 (Sanders, J., dissenting).
109. Dev. Servs., 979 P.2d at 398 (Sanders, J., dissenting).
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than not to have one.”110 Justice Sanders took the majority to task for
acknowledging that the term “necessary” has different meanings—that
it is ambiguous—but justifying its choice of a more restrictive meaning
on the rationale that zoning ordinances should be liberally construed.111
One cannot help but wonder whether the court’s decisions in Standard Mining and Development Services were driven more by desired
results than by the application of legal principles. Both cases involved
heavily regulated activities—mining and the use of helicopters. Perhaps
the court could not bring itself to allow such activities to be carried on
because the court expected each city to regulate more comprehensively,
even though neither government imposed restrictions with any clarity.
In any event, both cases set the stage for doing away with the strict
construction rule.
Indeed, the Washington Supreme Court’s decisions in Standard Mining and Development Services have been consequential in the appellate courts, which are bound to follow the supreme court’s lead when it
comes to construing ambiguous zoning ordinances. One recent example
is the Washington Court of Appeals’s decision in Milestone Homes, Inc.
v. City of Bonney Lake.112 Milestone Homes submitted a plat application, which proposed to meet the city’s density requirements by including five neighboring lots as part of its plat proposal.113 The five lots,
however, were owned by third parties and had been previously platted
and developed.114 The city council denied the application because it determined that the city’s code did not allow the inclusion of third party
lots in order to meet density requirements, although the city’s planning
staff recommended that the application be approved, since nothing in
the city’s code prohibited the practice of including neighboring lots in
subdivision applications.115
On appeal, the court of appeals began with the proposition that the
goal of construing an ambiguous zoning ordinance is to determine legislative purpose and intent.116 The court then acknowledged that the
110. Id. at 399 (Sanders, J., dissenting).
111. Id. at 399-400 (Sanders, J., dissenting).
112. 186 P.3d 357 (Wash. 2008).
113. Id. at 358.
114. Id.
115. Id. at 358-60. Not only did the planning staff recommend approval, the trial
court held that there was ambiguity in the city’s code which must be construed in favor
of allowing such subdivisions until Bonney Lake “[w]rite[s] a better ordinance that anticipates” the problem of adding third party lots to subdivision applications. Id. at 360
(first bracket in original).
116. Milestone Homes, Inc., 186 P.3d at 360.
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Ambiguous Zoning Ordinances
1079
supreme court had previously held that ambiguous zoning ordinances
must be strictly construed in favor of property owners,117 but the court
of appeals ignored the strict construction rule, relying instead on dicta
from Development Services, which states that courts are not required to
construe ambiguous zoning ordinances in favor of property owners, but
are to effectuate the ordinance’s purpose and intent.118 After concluding
that Bonney Lake’s ordinance was not ambiguous,119 however, the court
of appeals then went further, stating—also in dicta—that even “if the
zoning ordinances were ambiguous, we would defer to the city council’s interpretation of the code,” and “in construing ambiguous zoning
ordinances, we are guided by the reasonable expectation and purpose
of the ordinary person who enacts law for the welfare of the general
public.”120
Much confusion now abounds with respect to the rules of statutory
construction of zoning ordinances in Washington. While Morin held
that courts faced with an ambiguous zoning ordinance must strictly construe that ordinance to favor the property owner, Standard Mining and
Development Services have severely undermined the traditional strict
construction rule in favor of a rule that would presume the government
intended to restrict the property owner’s activity—a message that the
appellate courts are following.121
VI. Finding a Way Back to Strict Construction
Reading Standard Mining122 and Development Services123 might create the impression that the strict construction rule has breathed its last
breath in Washington state. But in 2007, the Washington Supreme
Court reiterated, albeit in dicta, that the court still applies the strict construction rule when construing ambiguous zoning ordinances.124 This
endorsement is found in Sleasman v. City of Lacey,125 a case involving
117. Id. at 361-62
118. Id. at 362.
119. Id. at 363.
120. Id.
121. See Milestone Homes, Inc., 186 P.3d at 363; see also, Pac. Rim Dev. & Constr.
v. Snohomish Cnty., No. 49143-1-I, 2002 Wash. App. LEXIS 3051, at *7-12 (unpublished) (citing strict construction rule, but upholding denial of planned residential development even though applicable ordinance was “not a model of clarity”).
122. State ex rel. Standard Mining & Dev. Corp. v. City of Auburn, 510 P.2d 647
(Wash. 1973).
123. Dev. Servs. of Am., Inc. v. City of Seattle, 979 P.2d 387 (Wash. 1999).
124. Sleasman v. City of Lacey, 151 P.3d 990, 992 n.4 (Wash. 2007).
125. Id. at 990.
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the interpretation of a tree-retention ordinance.126 In that case, the unanimous court said that if the city’s ordinance was ambiguous, “it must be
construed in favor of the Sleasmans because land-use ordinances must
be strictly construed in favor of the landowner.”127 The strict construction rule lives, but it remains to be seen whether the court will embrace
it in any meaningful way in future cases.
There are good reasons for courts to continue to apply the strict construction rule. For one, the rule seems to be more useful today than it
might have been in the past. Today’s zoning schemes are far more complex than zoning in the 1950s.128 Washington’s Growth Management
Act lays a foundation for comprehensive regulatory intervention with
respect to almost every conceivable use of land,129 and local planning
now involves the substantial use of “advanced” zoning techniques, such
as overlay districts.130 Overlapping regulation increases the likelihood
of encountering ambiguities in the code, making the strict construction
rule a handy tool for resolving cases that are now more complicated
than trying to figure out where tire recapping is prohibited.131
126. Id. at 991.
127. Id.
If former LMC 14.32.030(C) was ambiguous, then it must be construed in favor of
the Sleasmans because land-use ordinances must be strictly construed in favor of
the landowner. As we held in Morin v. Johnson, 49 Wn.2d 275, 279, 300 P.2d 569
(1956):
It must also be remembered that zoning ordinances are in derogation of the common-law right of an owner to use private property so as to realize its highest utility.
Such ordinances must be strictly construed in favor of property owners and should
not be extended by implication to cases not clearly within their scope and purpose.
Id. See also Mall, Inc. v. City of Seattle, 739 P.2d 668, 672-73 (1987) (noting to apply
Morin when the ordinance is ambiguous).
Sleasman, 151 P.3d at 992 n.4 (emphasis in original).
128. See supra note 17 and accompanying text. It is worth mentioning that increasing legal complexity is not limited to zoning. See Paul F. Campos, Juris-mania: The
Madness of American Law 5 (Oxford University Press 1998).
[A]nyone who compares the legal domains of our society to those of the premodern
state immediately becomes aware of a tremendous and ever-increasing contraction
of formally unregulated social space. . . . Today all that is changed, changed utterly.
Now law comes to us, whether we want it to or not. Legal modes of vocabulary
and behavior pervade even the most quotidian social interactions; the workplace,
the school, and even the home mimic the language of the law, and as a consequence
replicate its conceptual schemes. Indeed we may be seeing the fulfillment of Max
Weber’s grim prediction that in the postindustrial world everything will be subjected
to formal rules.
Id.
129. See Wash. Rev. Code § 36.70A.020 (2002).
130. For example, Washington’s Shoreline Management Act requires local governments to adopt Shoreline Master Programs, which overlay zoning in shoreline jurisdictions, imposing more layers of regulation on private property. See Wash. Rev. Code
90.58.020 (2011).
131. See Morin v.Published
Johnson,
300 P.2d 569, 571 (Wash. 1956).
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Ambiguous Zoning Ordinances
1081
Kiewit Construction Group v. Clark County132 is a good example of a
fairly complex modern case in which the strict construction rule significantly affected the outcome.133 Kiewit owned a parcel in Clark County,
which it leased to Pacific Rock in 1986 for the purpose of manufacturing asphalt.134 In 1988, the county rezoned Kiewit’s property, making
asphalt manufacturing a nonconforming use.135 In 1993, Pacific Rock
proposed to move its asphalt manufacturing operation, causing Kiewit
to become concerned that it would not be able to continue using the
property for asphalt manufacturing without a conditional use permit
if Pacific Rock left.136 Indeed, the county argued that Pacific Rock’s
departure would terminate Kiewit’s nonconforming use status, thus requiring Kiewit to obtain special approval, subject to conditions, in order
to continue to use its property for asphalt manufacturing.137
The court, however, found the county’s code to be ambiguous on
whether moving Pacific Rock’s manufacturing equipment would eliminate a nonconforming use.138 Thus, the court applied the strict construction rule and held that the county’s ambiguous zoning ordinance
must be construed to favor Kiewit, meaning that Kiewit did not need
to obtain a conditional use permit to continue manufacturing asphalt
on its property.139 In short, the strict construction rule simplified the
case, upheld property rights, and allowed the court to avoid the due process questions that might have arisen—a la Hauser140—if the court had
construed the county code to eliminate Kiewit’s right to manufacture
asphalt on its property.
Furthermore, the strict construction rule recognizes that there is inherent social value in maintaining an approach to zoning that favors the
rights of private property owners over government controls.141 Property
rights, as discussed in Part II, provide a number of benefits to society.142
132. No. 19252-7-II, 1997 WL 626437 (Wash. Ct. App. Oct. 10, 1997).
133. Id. at *3.
134. Id. at *1.
135. Id.
136. Id.
137. Kiewit Constr. Group, 1997 WL 626437, at *4.
138. Id. at *6.
139. Id.
140. See Hauser v. Arness, 267 P.2d 691, 698 (Wash. 1954).
141. See generally Harlan F. Stone, The Common Law in the United States, 50
Harv. L. Rev. 4, 14 (1936).
The statute [has been traditionally] looked upon as in the law but not of it, a formal
rule to be obeyed, it is true, since it is the command of the sovereign, but to be obeyed
grudgingly, by construing it narrowly and treating it as though it did not exist for any
purpose other than that embraced within the strict construction of its words.
Id.
142. SeePublished
suprainPart
II.
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1082
The Urban Lawyer
Vol. 43, No. 4
Fall 2011
They are the foundation of free expression.143 They allow people to insure against loss.144 Property rights are the basis of effective stewardship of natural resources.145 And property rights are a key ingredient
for capital accumulation.146 The strict construction rule shields private
property owners from ambiguous regulation because it supports these
values—it acknowledges that curtailing the property owner’s use will
generally produce negative results for society.
Finally, courts should be cautious about ignoring the strict construction rule because casting it aside will increase the likelihood that constitutional conflicts will arise between zoning authorities and property
owners. In fact, refusing to consistently apply the strict construction rule
could lead property owners to resort to constitutional litigation more
often than they otherwise might, thus transforming many parochial land
use conflicts into full-blown constitutional controversies.147 The connection is easy to see starting with Hauser. Since applying a zoning
restriction may trigger takings, due process, First Amendment, or other
constitutional concerns, resolving doubts about the applicability of an
ambiguous zoning ordinance in favor of the property owner avoids the
constitutional problem altogether.148 The strict construction rule allows
courts to avoid resolving constitutional issues where the true meaning
of the ordinance cannot be ascertained, by construing the ordinance
against restricting the property owner’s use, and thus cutting off the
possibility that application of the ordinance will infringe on the owner’s
property rights in a way that does not satisfy due process or other constitutional standards. The courts adopted the strict construction rule in the
first place to avoid making constitutional claims out of the enforcement
of ambiguous codes,149 and that justification remains valid.150
VII. Conclusion
The strict construction rule lurks in the background of Washington
court decisions, but it should occupy a place of greater distinction.
143. See Sandefur, supra note 19, at 24.
144. See supra Part II.
145. Id.
146. See Sandefur, supra note 19, at 35.
147. Federal courts are generally unreceptive to zoning cases. “[F]ederal courts are
not zoning boards of appeal and will not overturn merely erroneous decisions.” Polenz
v. Parrot, 883 F.2d 551, 558 (7th Cir. 1989).
148. This is not to say that zoning is per se an illegitimate use of the police power.
The U.S. Supreme Court put that question to rest in Euclid. See Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
149. See Hauser v. Arness, 267 P.2d 691, 692 (Wash. 1954).
150. Id.
Published in THE URBAN LAWYER, Volume 43, Number 4, Fall 2011. © 2011 by the American Bar Association.
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disseminated in any form or by any means or stored in an electronic database or retrieval system without the
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Ambiguous Zoning Ordinances
1083
While courts in the 1950s acknowledged the benefits of adopting a rule
that resolved zoning ambiguities in favor of property owners,151 later
decisions cast doubt on whether the courts were serious about protecting private property rights.152 The most recent decision to cite the strict
construction rule unanimously endorses it as a tool that courts should
use to decide cases involving ambiguous zoning ordinances,153 but the
Supreme Court of Washington has not actually applied it to decide a
case in decades.
However, Washington courts should not shy away from the strict construction rule. The rule protects private property owners in an era of
complex land use regulation by reminding the government that the first
principle of land use law has not changed—a property owner should
be able to use his property as he pleases. The strict construction rule
also helps courts avoid adjudicating constitutional claims where simply
finding that property owners should not be subject to ambiguous zoning
laws would resolve the dispute. For these reasons, the strict construction
rule should once again be recognized as a cornerstone of land use law.
151. See, e.g., Morin v. Johnson, 300 P.2d 569 (Wash. 1956).
152. See, e.g., Dev. Servs. of Am., Inc. v. City of Seattle, 979 P.2d 387 (Wash. 1999).
153. Sleasman v. City of Lacey, 151 P.3d 990, 992 n.4 (Wash. 2007).
Published in THE URBAN LAWYER, Volume 43, Number 4, Fall 2011. © 2011 by the American Bar Association.
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disseminated in any form or by any means or stored in an electronic database or retrieval system without the
express written consent of the American Bar Association.
Published in THE URBAN LAWYER, Volume 43, Number 4, Fall 2011. © 2011 by the American Bar Association.
Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or
disseminated in any form or by any means or stored in an electronic database or retrieval system without the
express written consent of the American Bar Association.