# Reply Brief — Lake Lawrence, Inc. v. Thurston County

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 802

## Text

Supreme Court, U. S.
FILED

NO. 79-1880 SER 17 1980

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM 1979

LAKE LAWRENCE, INC.,
Appellant,

Vv.

THURSTON COUNTY, et al.,
Appellees.

ON APPEAL FROM THE SUPREME COURT
OF THE STATE OF WASHINGTON

APPELLANT'S REPLY
TO MOTION TO DISMISS OR AFFIRM

PHILIP P. MALONE
Counsel for Appellant

Office and PO Address
P.O. Box 443
Poulsbo, WA 98370

ABCD AT CRAFTSMAN ?RESS. SEATTLE

TABLE OF CONTENTS

Page

There Are Substantial Federal Questions
For This Court to Decide and the Court
Has Jurisdiction as a Matter of Right

and Discretion Under 28 U.S.C. §

1257(2) an@ (3)... . = Bae oe ee

The Judgment Below Was Not Based On
an Adequate Non-Federal Basis as a

matter of Pact and law . «+s» s » «on
CRGAGGSOR « + + ek kh we eee 20
Appendix ° . + . . . . . - . . 7 . A- 1

TABLES OF AUTHORITY

Table of Cases

Agins v. City of Tiburon, U.S.

, 65 L. Ed. 2d 106, 100 S. Ct.
A SOee we ‘+ + © 6. Cee
Berman v. Parker, 348 U.S. 26 (1954) 15

Bishop v. Town of Houghton, 69 Wn.2d
786, 420 P.2d 368 (1966) .... 2-3

Cramp v_ Bd. of Public Instruction,
e668 U.S. 278 (iPea) ¢ ss wee 16

Creswill v. Grand Lodge Knights of
Pythias of Georgia, 225 U.S. 246
[S92h) 6 64 ee eee eee 10

Dahnke-Walker Milling Co. v. Bondurant,
237 U.G. 202 (1921). «+ « «+ = eee

Davis v. Wechsler, 263 U.S. 22 (1923) 10

ii

Page

Dept. of Ecology v. Ballard Elks,

84 Wn.2d 551, 572 P.2d 1121 (1974) 14
Dept. of Highways v. Environmental

Council, 82 Wn.2d 551, 572 P.2d 1121

DT * % -¢ © «8 ¢© © © «© © © © © « 14
First National Bank v. Anderson,

269 U.S. 341 (1926) . . . «© « « «© « 9

Fiske v. Kansas, 274 U.S. 380 (1926) 9,10

Hayes v. Yount, 87 Wn.2d 280, 552
P.24 1038 (1976). . . « « «© «© «© © © 12

Hull v. Hunt, 53 Wn.2d 125, 331 P.2d
6 SD ee ee 2

Kaiser Aetna v. United States,
U.S. ; sou S&S. Ct. 383 (1979) . . 6,11

Merkel v. Port of Brownsville, 8 Wn.
App. 844, 509 P.2d 390 (1973) .. . 14

National Assoc. for the Advancement
of Colored People v. Federal Power
Commission, 425 U.S. 647 (1976)... 15

Ogden v. City of Bellevue, 45 Wn.2d
492, 275 P.2d 899 (1954). ...... 2

Parkridge v. Seattle, 89 Wn.2d 454,
S73 P.2€ 359 (1978) . . . «© «© e we we © 8

Penn Central Transportation Co. v.
City of New York, 438 U.S. 104
(1978) * . . . . . . 7 . . ° 7

Raley v. Ohio, 360 U.S. 423 (1958). . . 16

o 2 «© « Ol

iii

Sharinghouse v. Bellingham, 4 Wn.
App. 198, 480 P.2d 233 (1971) .. . 3,18

Sisley v. San Juan County, 89 Wn.2d
78, 569 P.2a 712 (1977) . . «© « « - 14

State ex rel. Kuphal v. Bremerton,
59 Wn.2d 825, 371 P.2d 37 (1962). . 18

State ex rel. Welch v. Seattle
School Dist. No. l, 45 Wn.2d 6,
Zia Oeaa OL tases) s & ew we ew eo 12

Staub v. City of Baxley, 355 U.S. 313
[aeevie 6 & He Bee ee eK 8 els 9

Sterling v. Constantin, 287 U.S. 378
oo > > | Nee erm oe ee oe ee ee 6

United States v. Lee, 106 U.S. 196
2 3 rarer eae ee oe ee ee ee ee eee

Constitutional Provisions

U.8- Const. Amend. V. ° . . ° ° ° . 2,4,5
U.S. Conet. Amend. XIV . +--+ + » 2¢4sae0a2
Wash. Const. art. 1, sec. 16 . « « ef 4=§

Statutes

RCW Ch. 34.04 (Administrative Procedure
Act). . . . . a . . . * 7 - . ° . . 8,16

RCW Ch. 43.21C (SEPA: State
Environmental Policy Act) . . . 1,4,7,8,
12,13,et seq.

RCW Ch. 58.17 (Platting
Stetetels « « « vw we ee © w Reed Pee

Ps

iv

Page
RCW Ch. 90.58 (SMA: Shorelines
Management Act) ...... .1,2,7,8,14
Thurston County Ordinances
Comprehensive Plan ........ 13,17
Shorelines Master Program... 2,3,7,1l1l,
12, et seq.

Textbooks

Hill, The Inadequate State Ground,
65 Col. L. Rev. 943 (1965) ....- .- 10

THERE ARE SUBSTANTIAL FEDERAL QUESTIONS FOR
THIS COURT TO DECIDE AND THE COURT HAS JUR-
ISDICTION AS A MATTER OF RIGHT AND DISCRE-
TION UNDER 28 U.S.C. § 1257(2) and (3)

Substantial federal questions of
importance were presented, expressly passed
upon, or necessarily decided by the judg-
ment of the court below. They remain the
same and are now presented in the Jurisdic-
tional Statement. The appellees' motion is
actively misleading to camouflage their
importance by implying that the property
rights and freedom of the appellant were
merely regulated by the operation of valid,
constitutional statutory regulations!, of

SEPA, the platting statute, and SMA2,

in that the actions of appellees merely
constituted an adjudication of facts in

carrying out that linked "validity”

lpenn Central Transportation Co. v. City
of New York, 438 U.S. 104 (1978); Agins v.

City of Tiburon, U.S. » 65 ke Bd.
2d 106, 100 S. Ct. (1980).
2SEPA: State Environmental Policy Act,

Chapter 43.21C, J.S., App., A~266; Platting
Statute, Chapter 58.17, J.S. App., 58.17;
SMA: Shorelines Management Act, Chapter
90.58, J.S. App. A-280.

2
and therefore the questions presented are
disputes of fact not of importance for this
Court to decide (Motion 8-13).

In summary, a decision to one group
of those questions, Qs. 1-2, is dependent
upon a decision to the other group, Qs.
3-8. The first summarized question that
arises is whether the Fifth and Fourteenth
Amendments guarantee the exercise of the
fundamental rights of a person established
by common law and statutes having validity

by equally, area-wide, applying written,

informative standards limiting those rights

that have been held to statutorily vest and

cannot be retrospectively changed, even

by legislation, after an application has
been made in compliance with their regula-

tions3, i.e. SMA and its Master Program

30gden v. City of Bellevue, 45 Wn.2d 492,
495, 275 P.2d 899 (1954); Hull v. Hunt, 53
Wn.e2d 125, 127-131, 331 P.2d 856 (1958);
Bishop v. Town of Houghton, 69 Wn.2d 786,

3
regulations, and leave it up to the free-
dom, liberty and discretion of a person to
make a choice as to both how to choose to
use and use, enjoy, dispose of and make a
procsit from private property for residen-
tial purposes, so long as the choice and
use is made and limited within the bounds
of written, informative standards, specifi-
cations and guidelines set forth in regula-
tory statutes having validity because of
the information of the standards they
contained and their area-wide application
to property, without having singled out one
piece of property only, which have been
held to establish rights of a person as to

how to choose to use and use private

footnote cont.

795, 420 P.2d 368 (1966); State ex rel.

Kuphal ve. Bremerton, 59 Wn.2d 825, 828,

Sei eee oe (1962); Sharinghouse v. Belling
ham, 4 Wn. App. 198, 203, 480 P.2d 233
(1971); Parkridge v. Seattle, 89 Wn.2d
454, 460-461, 462-467, 573 P.2d 359 (1978).

Compare: United States v. Lee, 106 U.S.
196 (1882).

4+

property that are in compliance with their

written, informative standards‘.

The appellant challenged that the
appellees exercised such powers of govern-
ment to deprive and take away such liberty
of choice and property rights of appellant
in excess and beyond the scope of SEPA and
the platting statutes' expressed or implied
delegated authority; that the excessive
exercise of such state police power by
administrative adjudication deprived the
appellant of its freedom, liberty and
rights as to how to choose to use and use
its private property, and that such actions
resulted in its private property rights
being taken for public use without just
compensation as protected by the due
process and equal protection clauses and
prohibited by the Fifth and Fourteenth

Amendment and Article I, Section 16 of the

4supra, footnotes 1 and 3.

S

Washington Constitution. Or, in the
alternative, if the statutes, as applied,
delegated to the appellees such authoritv
such statutes were invalid for the same
reason>. The judgment ruled against the
challenges made as to the first alternative
and the second alternative (J.S. 2-8).

The second question that arises is
if the person has those rights, can the
person's rights to just and fair judicial
procedural and substantive due process and
equal treatment of the law in obtaining
judicial remedies against the local govern-
ment and its public officials, who exer-
cised those state police powers under color
of state law, claimed to be in violation of
its Fifth and Fourteenth Amendment rights,
inter alia, be likewise checkmated, circum-
vented and thwarted by that same local

government and its public officials for a

SDahnke-Walker Milling Co. v. Bondurant,
257 U.S. 282, 288-289 (1921).

6

second time claiming while adversary

parties to actions commenced against them
for the same violations that they have
police powers unbounded by any statutory
procedural or substantive standards or
guidelines to authorize them to procedur-
ally proceed out of court and by fiat make
substantive findings and conclusions of law
out of court and file them in court as
judicial proof of their authority and
substantively dispositive of the judi-
cial constitutional claims against them, as
the judgment has authorized the appellees
to do so and continue to do in the future
On any application by the appellant to be
made to use its private property®?

This second summarized federal ques-

tion appears in Questions 1 and 2 of the

6See J.S. Judgment, App. A-199; United
States v. Lee, 106 U.S. 196 (1882); Ster-
ling v. Constantin, 287 U.S. 378, 396-398
(1932); Kaiser Aetna v. United States,

Tees yy: See ee we 6 Be. Chee)

+
Jurisdictional Statement and was passed
upon and necessarily decided when the court
held:

"[TjJhe Commissioners are not bound
by the findings of the Shorelines Hear-

The order accepting appellate juris-
diction and staying the pending trial
likewise passed upon the procedural and
substantive authority of the appellees to
do so, and the court below to have juris-
diction, when the appellees chose not to
appeal the Board's decision to the trial
court and yet circumvented the SEPA proce-
dural and substantive safeguards;’ the

mandates of SMA and the Master Program

SEPA, procedure: 43.21C.030(2)(a)-(e);
substantive: 43.21C.060, J.s. App., A-
266-269.

8

regulations8 and "contested" the Board's

SMA and SEPA findings out of court and
presented their findings and conclusions in
trial court and the court below as proof of
their authority in face of the prohibition
of the Administrative Procedure Act?2.
THE JUDGMENT BELOW WAS NOT BASED ON AN

ADEQUATE NON-FEDERAL “BASIS AS A MATTER OF
FACT AND LAW

The jurisdiction of the Court in
this case is not based upon the invalidity

of language appearing on the face of

SsMA, "A permit shall be granted . . .”,
90.58.140, (2)(b), J.-S. App., A~288-289;
Shorelines Hearing Board, 90.58.170-180,
J.J. App. A2950-198; changing of Master
Program regulations, 90.58.1190, J.S.
App., A-299; lands adjacent to shoreline
lands, 90.58.340, J.S. App., A-300.

9see J.S., Administrative Procedure Act,
RCW 34.04.130 Contested cases-Judicial
Review, (1), (3); Appellant's Motion and
Memo for Discretionary Review, J.S., App.
A-153, 173; Supreme Court Order Accepting
Certification, J.S., App. A-183; Appel-
lant's Motion For Reconsideration, J.S.
App. A-202; Supreme Court Order Denying
Motions for Reconsideration, J.S. App.
A-245.

9
Statutes, but the absence of language and
the interpretation and application of
language of statutes, the validity of which
was upheld by the judgmentlO, he guris-
dictional Statement need not to have
pointed in questions raised to statutory
language on its face that was not in-
valiall, Nor does the statement call
upon the Court to resolve disputes of
facts; except to examine the record that
the appellees' actions were not the exer-
cise of administrative adjudication in the
application of valid, area-wide, land-use
regulations that the motion claims, and
there is no evidence in the record to

Support facts found by the court below to

10pahnke-Walker Co. v. Bondurant, 257
U.S. 282 (1921); First Nat. Bank v.
Anderson, 269 U.S. 341, 345-347 (1926);

Motion, para. 4, pg. 9.

llrtpid, Fiske v. Kansas, 274 U.S. 380,
385 (1926); Staub v. City of Baxley, 355
U.S. 313, 319-320 (1957); Motion, para.

4, pg. 9

10
Support its conclusions of law as to state

and federal questions interdependent upon

those facts found by the court.12
"Springes" may not be set, "for those who
are endeavoring to assert rights that
the State confers", and the assertion of
federal rights are not to be defeated by
procedural or substantive “springes" of
state law, when "plainly and reasonably
made"13, The motion sets "“springes"
when camouflaging the appellees' actions to
be the authorized application of “valid"
statutory regulations authorized by the
trial court return of the record; the
Shorelines Hearings Board decision; and the

stipulation, when there is no evidence in

l2riske v. Kansas, 274 U.S. 380, 385-
380 Ci 926)3 Creswill v. Grand Lodge
Knights of Pythias of Georgia, 225 U.S.
246, 20% (CidSil);. Metion, para. 2, pg.ll:

l3pavis v. wecneier, 263 U.S. 22, 24-
25 (1923); Hill, The Inadequate State
Ground, 65 CLR 943 (1965).

1l

the record to support those conclusionsl4,

The only source of statutory proce-
dural and substantive authority used by the
appellees when making their first and
second decision on environmental grounds
only to not approve the appellant's first
Choice of a plat subdivision of 27 residen-
tial lots, authorized by the standards
of the Master Program regulations, and
succeeding submissions of the appellant
to demands made by the County reducing
the number of lots to 24 and finally to 22
lots; not issue a shorelines permit for
such subdivision, and not permit a private
community pier to be constructed for
private family residential use of the
land and the use of the riparian rights15,

was the use of isolated language of the

l4Motion, ppe 3-8, 11-12.

i Pe ee 20-24; Kaiser Aetna v. United
States, _ 9.8. , £00 $$. Ges ee

12

platting seakuie and SEPAL6®, not imple-~-
mented by any valid area-wide statutory
regulations, such as the Master Program
standards for subdivision and use of the
land upon which the appellant relied.

The appellees and the judgment
justified the jurisdiction and authority of
the appellees and the jurisdiction of the
court below!7 on inadequate state grounds
to authorize the appellees while adversary

parties making a second environmental

Bemem $6.17.110, 3.8., App. A-277:
“The . .« . county legislative body shall
inquire into the public use and interest
proposed to be served. ...", by the
platting. J.S., Judg., App. A~-193-194;
196-198. RCW 43.21C.030, J.S., App.
A-266: “The legislature authorizes and
directs that, to the fullest extent pos-
sible: (1) The policies, regulations, and
laws of the state of Washington shall be
interpreted and administered in accordance
with the policies set forth in this act. .
eo « J.S., Judg., App. A-197-198.

l7state ex rel. Welch v. Seattle Schl.
ore wis ££. 25 Wne2d 6, 272 2.26 617
(1954); Hayes v. Yount, 87 Wn.2d 280, 552
P.2d 1038 (1976) at 286 and 287; Dept.
of Highways v. Environmental Council, 82
Wn.2d 280, 510 P.2d 216 (1973) at 282-287.

13

decison out of court when not appealing to
the trial court the Shorelines Hearings
Board decision and to act as advocates,
judge and jury of their own author-
ity, when circumventing the expressed
procedural and substantive safeguards of
statutory laws.18

The judgment after first concluding
that the Comprehensive Plan "governs
here", against the objection that its
application would amount to discriminatory
"spot zoning": J.S., Judg.,-App. A-189,
based on the isolated, broad, extensive
language of SEPA and the platting statute

held that the Commissioners have:

SEPA .. . and that the denial of
the plat in this case does not violate
respondents' rights to due process or
constitute a taking of private property
for public use without compensation."
(J.S., Judg., App. A-192-193; empha.
added)

18supra footnotes, 7-9,

14

The conclusion of the independency

of the procedural, substantive, adjudica-
tory authority of the Commissioners to make
a second decision was based upon inadequate
state grounds when narrowing the substan-
tive, adjudicatory authority of the Board
under SMA and SEPA to the shorelines
area only of the sitel9 and holding
the Commissioners had greater independent,
procedural and substantive authority than
the Board when applying the broad, vague,
uncertain, ambiguous and isolated language

of the platting statute. 20

19Merkel ve Port of Brownsville, 8 Wn.
App. 844, 850-51, 509 P.2d 390 1973; Dept.
of Ecology v. Ballard Elks, 84 Wn.2d LiF

Foe, Bee Bek@ Flak CEPTA): Sisley v.
San Juan County, 89 Wn.2d 78, 83, 569
P.2d 712 (1977). Cf., results of ‘ndonant
with cases cited in footnote 7. O28 te
inconsistency. The Master Program defini-
tion of “residential development" (J.S.,
App. A-~362) includes the non-physical
“legal division of real estate"; supra
footnote, 7, 8 and 9.

20compare: The trial court's conclusions:
3.4 Public Interest and 3.5 Legislative

15

Then in answer to the challenge that
the isolated language of the platting
statute was over-broad, ambiguous, vague,
and misleading and would be a violation of
the due process and equal protection of law
guarantees of the Fourteenth Amendment when
applied to implement through administrative
adjudication its language and not valid
statutory regulations, the judgment incon-
Sistently shifted, dodged, evaded, and
without any adequate or tenable state
authority arbitrarily concluded that the
Commissioners' authority to deny the plat

“derives essentially from SEPA" and that

Since SEPA is not a:

Footnote Continued

Intent re Platting. The trial court's
decision on 'vagueness' is in accord with
this Court's decision limiting the scope of
the term ‘public interest' in National
Association for the Advancement of Colored
People v. Federal Power Commission, 425
U.S. 647, 669-670 (1976). Note also the
platting statute used the term “public use”
that the judgment applied. Cf., Berman v.
Parker, 348 U.S. 26 (1954).

16
"C[Rlegulatory statute prohibiting
certain types of conduct and impos-
ing sanctions for violation of its
Standards, the vagueness doctrine as

such is not applicable. See Blond-
heim _v. State, 84 Wn.2d 874, 878,

A-197.)

The reasoning is completely contrary
to a similar evasion of the same challenge
made to a non-regulatory vague Florida
statute that this Court held invalid2l.
In this case such application is more of an
unfair trap caused by the conflicts from
“voice of the state" that arise when the
appellant relied on SMA; the valid Master
Program regulations; the procedural and
substantive safeguards of SEPA; the Admin-
istrative Procedure Act, and the prior

decisions of the court below with which the

judgment is inconsistent22.,

2lcramp v. Bd. of Public Instruction,
368 U.S. 278, 280, 287-288 (1961).

22Raley v. Ohio, 360 U.S. 423, 438-439
(1958); Suara, feoetnote 3, 7, 8 and 9,

17
The non-SEPA environmental criteria
that the appellees used and the judgment
justified for the Commissioners to deter-

mine that a "cluster configuration" was

favored as a non-SEPA "“alternative"23,
Over the choice of the appellant's subdi-
visions and that the status of eagles was

"endangered", so as to determine to deny

the plat and issuance of a shorelines
permit on environmental grounds of their
Own making, was by borrowing that language
from the Comprehensive Plan, a plan that on
its face states its purposes as being a
“blueprint” for legislation only and not
adjudication in that it had not been
implemented by any valid area-wide regula-
tions and therefore created no statutory

rights, benefits or detriments; except upon

23Trial Court's findings, 2.7 Alterna-
tive Conditions, J.S. App. A-121; A-116:
“the court believes that the actions of the
respondents will destroy the property for
all practical human uses" (Memorandum
Opinion).

18
the appellant by political adjudication
only in this case.24 The judgment upheld
the validity of the plan's application
as not being an act of “spot zoning" in the
face of the "Rural Environment" statutory
zoning designation of the property (Judg.,
J.S. App. A-189), and also held that the
actions of the Commissioners' use of the
plan's language would not result in inverse
condemnation in that subject to the will of

the Commissioners there is a "possibility"

that they may approve a plat with a "clus-

ter configuration" with less lots to

protect the status of the eagles as "endan-
gered" under the plan (J.S., Judg., App.

A-199). The finding of such "possibility"

24second Decision, J.S. App. A-76-79;
Plan, J.S. App. Forward, A-381; Wildlife,
A-396; State ex rel Krupehral v. Bremerton,
539 Wn.2d 825, 371 P.2d 37 (1962); Shar-
inghouse v. Bellingham, 4 Wn. App. 198,
480 P.2d 233 (1971).

f

19
has no evidence in the record25 to
Support it and support the judgment's

conclusion, based on that vague “possi-

bility", that the appellant had a "balance
test":

"(P]resent, possible, and reasonably
profitable alternative use to which"
its property is "adaptable". 26

The appellant's Opportunity to a hearing on
that fact was cut off by the appeal and

judgment. The "possibility" is more

remote when the second decision was based
upon the appellees' lack of environmental
knowledge of the impact to eagles by human
use of the property, a SEPA duty that the

appellees didn't fulfil127.

25First Decision, J.S. App. A-30; Second
Decision, J.S. App. A-69; Appellant's Pet,
and Affidavit for Review and Prohibition,
J.-S. App. A-32; Motion for Prohibition-S,
Ct., J.S. App. A-232.

26supra, eeetanotes 21, 3.38. Judg., App.
A-199-120

27supra footnote 7, 43.21C.030(2)(a)-(e);
43.21C.060, A-266-269; Second Decision,
J.-S. App. 77-79, Supra, footnote 23,

20

CONCLUSION

The broad, vague language of SEPA
and the platting statutes applied by the
appellees had not been implemented by
informative, valid, environmental, statu-
tory regulations equally applicable to the
benefit and detriment of the private use of
property on the lake, as the valid Master
Program regulations did upon which the
appellant relied. The appellees used vague
language only as authority to act under the
guise of administrative adjudication to
create the procedural and substantive means
they employed to implement by adjudication

de facto, special, legislation, and change

the property rights of the appellant. The
judgment and jurisdiction of the court
below is without an adequate, non-federal
basis and is in conflict with opinions of
the court on federal questions (see Appen-
dix).

Respectfully submitted

Philip P. Malone
Counsel for Appellant

APPENDIX

FEDERAL QUESTIONS IN CONFLICT WITH
OPINIONS OF THE COURT

1. May common law and statutory
rights to use private property, held to
have vested! after an application is made
to local government for permission to use
private property, be made misleadingly to a
person of common intelligence,2 and be
retrospectively3 changed and "taken" away
by the application by government of broad,
misleading, statutory language4 for a
public use or purpose5 "without the
constitutional way of Paying for the

change"© to effect under the guise of

lrootnote 3 of text.

*Raley v. Ohio, 360 U.S. 423 (1958).

3United States v. Lee, 106 U.S. 196 (1882).

4cramp v. Bd. of Public Instruction, 368
U.S. 278, 287-288 (1961); National Assoc.
For Adv. of Colored People v. Federal
Power Com., 425 U.S. 647 (1976).

SBerman v. Parker, 348 U.S. 26 (1954).

6Penna. Coal Co. v. Mahon, 260 U.S. 393,
416 (1922).

A-2

administrative adjudication a change of
those rights to implement a plan, a "blue-
print" for future legislation,? without
valid legislation,8 a separate power of
government ?9

2. May public officials by such
application of statutory powers, unfairly,
unequally,1l9 on an ad hoc, piecemeal,
discriminatory basis, arbitrarilyll pick,
choose, and select as they may determine
Only the appellant's liberty and rights to
be burdened as a condition to their confer-

ring governmental permission to use private

7 Footnote 22 of text.

8kKaiser Aetna v. United States, 2s.
» 100 S. Ct. 383, 390 (1979; Penn

439 U.S. 883 (1978); Agins v. Tiburon,
U.S. 65 Le. Ed. 2d 106 (1980).

9Mugler v. Kansas, 123 U.S. 623, 662

10tpid, 8.

llsupra, footnote 3; People v. Tibbits,
305 N.E. 2d 152, 155 (1973).

A-3

property by withholding that permission
enforceable by criminal sanctions if used
without it?12

3. Can public officials demand by
force of criminal sanction that the use of
private property be set aside within a
selected piece to preserve areas of the
natural environment as they may choose free
from all human activity, otherwise author-
ized by valid area-wide standards of

environmental statutory regulations for the

protection of that same environment, the
Shorelines Master Program comprehensive
regulations, upon which the person mislead-
ingly reliedl3 and when that burden is
imposed on no other use of private property
in the area, the county, or in the state

where it is located, so as not to have an

12platting Statute, 58.17.300, Viola-
tions-Penalties, J.S. App. A-280.

133.5, 14-42.

A-4

"average reciprocity of sivdetbushts
to the appellant when changing those rights
expressed by valid regulations, promulgated
by “administrative adjudication only when
the appellees usurped that function so
legislatively expressed of the will of the
people?15

4. Is a hearing and substantive
decision out of court by a party's adver-
saries determinative of those questions as
having such naked powers justifying the
appellees’ actions in making a second
decision and determinative by the judgment

reversing the trial court's mandamus order

l4supra, footnote 6, 260 U.S. 383, 415;
footnote 8.

15 Eastlake v. Forest City Enterprises,
Inc., 426 U.S. 668, 675; Mr. Justice Powell
dissenting, 680; Mr. Justice Stevens with
Mr. Justice Brennan, 680-689, citing
Fasano v. Board of County Comm'rs, 264 Ore.
74ms SOU" OOL, BUF Feed. 23,. 26° €1973)
and Fleming v. City of Tacoma, 81 Wn.2d
Sah S9OrERT, SUS Foae B27, 33:1 (1972).

A-5
and pending trial for constitutional
damages and compensation equivalent to a
fair and impartial trial in court in final

determination of those questions?16

16sterling vv. Cosesentia, 2827 Bane

378 (1932); United States v. Lee, 106 U.S.
196 (1882).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2451%3A4. Public record. Not legal advice.