(dissenting) — This is a straightforward land use case that offers us the opportunity to shed needed light on our murky law of compensation for land use regulation. Instead, the majority disregards 100 years of claim preclusion law in Washington and ignores crystal clear language in RCW 64.40.040 to avoid reaching the fundamental land use issues. By declining to address the Court of Appeals’ analysis of substantive due process and 42 U.S.C. § 1983, the majority also leaves in place an erroneous analysis of the constitutional tort in land use cases, contributing to further confusion in an area of law already made nearly unintelligible by unwarranted judicial activism. For these reasons, I respectfully dissent.
ANALYSIS
A. Factual Issues
The majority accurately discusses the essential facts in this case, but omits several salient facts regarding the Seattle City Council’s (City Council) decision that bear emphasis.
The root of this dispute, of course, is the City of Seattle’s (City) initial failure to approve Hayes’s Master Use Permit application containing the proposed 80-foot long building. The City would approve the permit only if Hayes would agree to make the building no longer than 65 feet. The City based this determination on its authority to mitigate "edge impacts.”
Seattle Municipal Code (SMC) 25.05.675(G)(2)(a), based on the State Environmental Policy Act (SEPA), provides the bulk and scale of buildings proposed to be located next to less intense developments should be "reasonably compatible” with the height, bulk, and scale of buildings in that zone. This policy is known as the "edge” policy because it applies in areas that abut, or are on the edge of, a single family home.
*726Making a subjective decision about the size of a proposed project was precisely what the people of Seattle empowered their elected officials to do in this ordinance. The City could deny a permit or require mitigation if "[t]he project is located near the edge of a zone, and results in substantial problems of transition in scale or use which were not specifically addressed by the applicable City code or zoning.” SMC 25.05.665(D)(5). The ordinance describing "edge impacts” due to height, bulk, and scale reads, in pertinent part:
The City’s adopted land use policies are intended to provide for smooth transition between industrial, commercial, and residential areas, to preserve the character of individual city neighborhoods and to reinforce natural topography.
It is the City’s policy that the height, bulk and scale of development projects should be reasonably compatible with the general character of development anticipated by the adopted land use policies set forth in SMC Chapter 23.12 for the area in which they are located, and to provide for a reasonable transition between areas of less intensive zoning and more intensive zoning.
SMC 25.05.675(G)(1)(a) and (G)(2)(a) (emphasis added). Thus, the City’s authority to regulate height, bulk, and scale derives from SEPA, and the ordinance confers substantial discretion on the City Council to mitigate the "edge impact” of Hayes’s development. The City Council exercised this discretion by conditioning approval of Hayes’s project on a reduction in the length of the proposed structure.
Both the Court of Appeals and the majority fault the City Council for failing to explain why it imposed the condition: "The Council’s decision simply assumes smaller is preferable and relies on the obvious point that reducing the project by 15 feet will make it smaller.” Hayes v. City of Seattle, No. 33342-9-1, slip op. at 10 (Wn. App. Feb. 13, 1995); "[t]he decision simply reflects the Council’s view *727that Hayes’s project was too big, apparently on the theory that smaller is better.” Majority op. at 717. The trial court also expressed its disagreement with the City Council’s decision in similar terms: "There must be some further identification of why 'big is bad’ in this case.” Clerk’s Papers at 101. Yet such judicial "correction” of the City Council determination is improper. In subjectively assessing an "edge impact,” as the Seattle SEPA-based ordinance required, the City Council was entirely within its discretion to decide "smaller is preferable” or "smaller is better” or "big is bad.” While we may quarrel with such an assessment, this decision is not entrusted to the judiciary.
The majority holds the City Council decision to be arbitrary and capricious, "taken without regard to the surrounding facts and circumstances,” majority op. at 717, but the record does not support this view. We define arbitrary and capricious in the context of agency decision-making as follows: "Administrative action is arbitrary and capricious only when it is willful and unreasoning or taken without consideration and in disregard of the facts.” State v. Wittenbarger, 124 Wn.2d 467, 486, 880 P.2d 517 (1994). "Where there is room for two opinions, action is not arbitrary and capricious when exercised honestly and upon due consideration though it may be felt that a different conclusion might have been reached.” Cougar Mountain Assocs. v. King County, 111 Wn.2d 742, 750, 765 P.2d 264 (1988) (quoting Barrie v. Kitsap County, 93 Wn.2d 843, 850, 613 P.2d 1148 (1980)). "A judicial conclusion that the administrative decision was erroneous is not sufficient.” State v. Ford, 110 Wn.2d 827, 830, 755 P.2d 806 (1988).
The trial court in the writ of review suit did not invalidate the City Council’s decision under the Seattle "edge ordinance” as arbitrary and capricious. By letter opinion dated August 13, 1990, and subsequent order, the trial court simply remanded the matter to the City Council so it could more specifically identify the impacts of the building’s bulk and scale, and describe how the additional condition (reducing the building’s length by 15 feet) mitigated those impacts. On remand, the City Council *728reconsidered its decision and rescinded the condition. As a result, it did not set forth any facts in an attempt to support its original position.
Moreover, Hayes contends the City Council decision was without due consideration of the facts: "the City Council did not in fact review the record nor any portion of it. . . . The Council hearing took 5 or 10 minutes.” Br. of Resp’t at 5, 7. These assertions were perhaps influential in persuading the courts below and the majority here that the City gave Hayes short shrift. Councilmember Jim Street filed an affidavit in the trial court, however, substantially refuting Hayes’s assertions:
I have reviewed the declarations of Richard Sanders and Michael Hayes in this case, in which they state that the Council did not review the record on appeal before making a decision on the appeal. This is totally false. I specifically reviewed documents submitted on the appeal, and discussed the record during Council meetings. I made a site visit to the property. The appeal was before the Council on at least four occasions in 1989 alone. The parties were permitted to present oral argument to my committee and did so. The Council’s review of the record and consideration of the appeal was [sic] no different from the numerous land use appeals which come before it. The transcript of those proceedings, partially submitted by the plaintiff for this motion, refutes his claim that the Council summarily decided the appeal. The Council fully and fairly considered the competing arguments of the parties before making its decision. Contrary to the plaintiff’s statement, the Council’s decision was anything but a sham.
Clerk’s Papers at 112-13. The record before us reveals no motion to strike this affidavit or any portion of it in the trial court. "Failure to make such a motion waives deficiency in the affidavit if any exists.” Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 352, 588 P.2d 1346 (1979).9
Based on the record, therefore, I cannot conclude the *729City failed to give due consideration to this matter, and I am therefore less inclined than the majority to substitute my judgment for the judgment of the City Council on a matter it had sole responsibility to decide. I do not believe the City acted arbitrarily and capriciously with respect to Hayes’s Master Use Permit application in light of the ample discretion conferred upon it under the ordinance.10
*730B. RCW 64.40
Hayes’s claim under RCW 64.40 was barred under either principles of claim preclusion or the statute of limitations in RCW 64.40.040.
1. Claim Preclusion
The City correctly asserts Hayes’s RCW 64.40 claim is barred by the doctrine of claim preclusion. Hayes should have joined his claim for damages with his writ action.
Washington law since territorial days has mandated the presentation of all related claims in a single action:
It is for the interest of the public that litigation shall not be had about one wrong by many actions. It is wrong for a plaintiff to split up a contract or wrong into many parts, and thus harass and put to costs a defendant, when the plaintiff can recover, if he chooses, all in one action. One action, judgment, and satisfaction for one wrong are all the law allows.
Dawson v. Baum, 3 Wash. Terr. 464, 471, 19 P. 46 (1888). This proposition is entirely without controversy; we have stated it in different ways many times. See, e.g., Sanwick v. Puget Sound Title Ins. Co., 70 Wn.2d 438, 441, 423 P.2d 624, 38 A.L.R. 3rd 315 (1967); Witte v. Old Nat’l Bank of Spokane, 29 Wn.2d 704, 709, 189 P.2d 250 (1948); State ex rel. White Pine Sash Co. v. Superior Court, 145 Wash. 576, 579, 261 P. 110 (1927) (rule against splitting causes of action avoids "multiplicity of suits, and thus protects the defendant against unnecessary vexation, and avoids the costs and expenses incident to numerous actions”); Spra-gue v. Adams, 139 Wash. 510, 515, 247 P. 960, 47 A.L.R. 529 (1926). The rule applies
[N]ot only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
*731Anderson v. National Bank, 146 Wash. 520, 528, 264 P. 8 (1928) (quoting Woodland v. First Nat’l Bank, 124 Wash. 360, 362, 214 P. 630 (1923)).
The Court of Appeals here held "Application for a writ of review and a claim for damages under RCW 64.40 should be brought as a single action. Even where the separate claims are disposed of sequentially, this approach makes clear to all parties what is at stake in the review process and efficiently disposes of all claims.” Hayes v. City of Seattle, 76 Wn. App. 877, 879 n.3, 888 P.2d 1227, review granted, 127 Wn.2d 1009 (1995) (citation omitted).11
The majority agrees with Hayes and disagrees with the Court of Appeals, holding there is no identity of subject matter between the writ of review and RCW 64.40 action: "The action for judicial review focused exclusively on the propriety of the decision making process of the Seattle City Council. On the other hand, the subsequent [RCW 64.40] action was for a judgment for money to compensate Hayes for the damages he allegedly suffered as a result of the Council’s action.” Majority op. at 713.
The majority cites Mellor v. Chamberlin, 100 Wn.2d 643, 673 P.2d 610 (1983), for the proposition "separate lawsuits that arise out of the same set of facts do not necessarily involve the same subject matter.” Majority op. at 712. The majority is wrong. Mellor specifically involves related, though entirely distinct, facts and causes of action. We said "Although both lawsuits arose out of the same transaction (sale of property), their subject matter differed. The first lawsuit disputed whether the Chamberlins misrepresented the parking lot as part of the sale. The second questioned whether Buckman’s claim of encroach*732ment breached the covenant of title. Moreover, the two causes of action were distinct.” Mellor, 100 Wn.2d at 646.
Hayes does not dispute he could have filed his action for damages under RCW 64.40 at the time he filed the writ of review. Answer to Pet. for Review at 15-16. He simply chose not to do so because he now claims to believe the writ action and the damages claim were "distinct and disconnected causes of action.” Id. at 16.
However, Hayes’s own arguments on this question are contradictory. Hayes argued in the Court of Appeals the writ of review and his subsequent action for damages under RCW 64.40 were so similar he was entitled to summary judgment on the RCW 64.40 claim on the basis of collateral estoppel. Br. of Resp’t at 17-18. Collateral estop-pel would be appropriate, of course, only if there were identity of claims in the prior and subsequent actions. Hayes now takes precisely the opposite position. He argues the writ of review was "distinct and disconnected” from the RCW 64.40 action. The same two actions cannot simultaneously be "distinct and disconnected” and identical enough to establish collateral estoppel.
In fact, Hayes’s claim for damages under RCW 64.40 arises out of the same bundle of facts constituting the basis for the writ of review. An examination of the respective allegations establishes the identity of those claims:
Writ of review allegation: Basis for Review: The decision of the Seattle City Council is arbitrary, capricious and/or contrary to law and is subject to direct review by this court. . . . Plaintiffs are entitled to recover their reasonable attorney fees pursuant to RCW 43.21C.075O).
Clerk’s Papers at 98.12
RCW 64.40 allegation: The City of Seattle acted arbitrarily, *733capriciously, unlawfully, and/or in excess of lawful authority when it denied and/or delayed the issuance of said permit and/or failed to act within time limits established by law .... Plaintiff is entitled to recover his damages as well as reasonable attorney fees pursuant to RCW 64.40.020.
Clerk’s Papers at 5.
These allegations involve the same theory of liability: arbitrary and capricious action by the City; they differ only in the remedy sought. In the writ of review, Hayes prayed for an order allowing him to build an 80-foot long building. In the RCW 64.40 action, he prayed for damages stemming from the City’s failure to allow him to build that 80-foot building. In each case, adducing precisely the same facts, he alleged the City acted arbitrarily and capriciously, but he did not file the damage allegations until a year after he had filed the writ of review. Principles of claim preclusion required him to file the damage allegations during the pendency of the writ of review suit.
Further, our case law supports the view that the theories at issue here can be brought in a single action. In Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 97, 829 P.2d 746 (1992), cert. denied, 506 U.S. 1079 (1993), the plaintiff filed an action for a writ of certiorari and damages under RCW 64.40 in the same lawsuit, and subsequently amended the lawsuit to include a claim under 42 U.S.C. § 1983, all without objection from the defendant or criticism by the Court. After Snohomish County had repeatedly refused to issue a conditional use permit to allow the plaintiff to build a rest home on its property, the plaintiff sought a writ of certiorari from the Snohomish County Superior Court ordering the county to issue the permit. The plaintiff also sought damages under RCW 64.40 as a remedy for the *734county’s arbitrary and capricious conduct in refusing the permit. The superior court held the refusal of the county to issue the permit was arbitrary, capricious, and unlawful. Id. at 98. Based on that holding, the plaintiff moved for partial summary judgment of liability on the RCW 64.40 claim, arguing that because all it had to show to establish liability under RCW 64.40 was arbitrary and capricious behavior, the prior decision of the court in the writ of cer-tiorari was "binding at this stage of the litigation under the doctrine of collateral estoppel.” Id. at 112. We held collateral estoppel was applicable under the circumstances, because the trial court’s finding of arbitrary and capricious conduct in the writ of certiorari suit "conclusively established” arbitrary and capricious conduct for purposes of RCW 64.40. Lutheran Day Care, 119 Wn.2d at 116-17.
If the majority is correct here that the "evidence [Hayes] needed to maintain [the writ of review] is far different than the type of evidence that he needs to muster to establish that he was entitled to an award of damages [under RCW 64.40],” majority op. at 713, then the inescapable conclusion is this Court was wrong in Lutheran Day Care. In fact, this Court was right in Lutheran Day Care.
Finally, we have said the "doctrine of res judicata is based on public policy.” Luisi Truck Lines, Inc. v. Washington Utils. & Transp. Common, 72 Wn.2d 887, 896, 435 P.2d 654 (1967). Thus, a discussion of policy considerations is warranted and those considerations emphatically favor the City, not Hayes.
When the City Council reconsidered its condition reducing the length of Hayes’s building by 15 feet in response to the remand from the superior court, the only lawsuit Hayes had then filed against the City was the writ of review suit. The writ statute contains no damages provision; nor does it contain an entitlement to attorney fees. The only claim for money damages appearing in the writ lawsuit is a claim under RCW 43.21C.075(9) (SEPA) that permits a court to award no more than one thousand dollars in reasonable attorney fees "if the court makes *735specific findings that the legal position of a party is frivolous and without reasonable basis.” Id.; Clerk’s Papers at 98. Thus, on reconsideration in response to the remand from the superior court, the City Council may well have decided to eliminate the 15-foot condition rather than face further litigation, and to absorb at most a $1,000 attorney fee award. The City Council may have simply decided to cut its losses at that point.
Had the damages claims under RCW 64.40 been pleaded at the time the City Council rescinded the 15-foot condition, the City Council might not have agreed to rescind in the absence of a settlement agreement with, and release of claims from, Hayes. Alternatively, if no satisfactory settlement with Hayes were possible, the City Council might have elected to hold its ground by making specific findings of fact in an attempt to satisfy the superior court that its conditioning of the Master Use Permit was proper under the City’s SEPA ordinance. Such an approach would have given the City at least a fighting chance to avoid a determination its decision was arbitrary and capricious, and therefore subject to a damage award.
But Hayes did not file those damage claims until after the City Council’s rescission of the 15-foot length reduction condition. Thus, the City Council had no reason to think it was exposed to damage claims when it responded to the superior court’s order by rescinding the condition rather than attempting to cure the deficiency the superior court had found in the findings of fact. Allowing Hayes to pursue damage claims after the City had rescinded the condition is unfair.
In summary, the majority’s argument that Hayes was not required to advance his damage claims in the writ of review suit because they were "distinct and disconnected” does not withstand scrutiny; the claims arise out of the same facts, as Hayes previously contended. As we held in Lutheran Day Care, those claims were identical enough to support the application of collateral estoppel. Finally, the facts of this case dictate the application of claim preclusion *736to avoid prejudice to the City. Rather than disregarding a fundamental principle of Washington law in place since territorial days, I would dismiss the RCW 64.40 action.
2. Statute of Limitations
RCW 64.40.030 sets the time limitation for filing a claim under the statute: "Any action to assert claims under the provisions of this chapter shall be commenced only within thirty days after all administrative remedies have been exhausted.” The City Council imposed the 15-foot building length reduction on December 18, 1989. Hayes did not file his claim for damages under RCW 64.40 until December 26, 1990, more than a year later. The Court of Appeals agreed with the City this was too late, but the majority reverses. Majority op. at 715.
The majority argues the City Council’s final action in issuing the permit to Hayes with the undesirable condition did not, in fact, constitute the exhaustion of all administrative remedies. According to the majority, the final administrative action triggering the beginning of the time to file the RCW 64.40 case did not occur until after Hayes sought judicial review, obtained the remand order, and the City Council ultimately rescinded the challenged condition. Hayes "continued to pursue his effort to obtain a master use permit from the Seattle City Council, albeit with aid from the King County Superior Court.” Majority op. at 716. Under the majority’s interpretation, seeking judicial review in superior court under RCW 7.16 is simply continued pursuit of an administrative remedy.
The majority offers no authority from any case or treatise for this proposition. Hayes invoked judicial review precisely because there were no more administrative avenues to pursue. Judicial review is ordinarily not available until all administrative remedies have been exhausted. See, e.g., State v. Grays Harbor County, 122 Wn.2d 244, 249, 857 P.2d 1039 (1993) (RCW 43.21C.075(4) requires exhaustion of administrative remedies before judicial review may be sought); Simpson Tacoma Kraft Co. v. Department of Ecology, 119 Wn.2d 640, 646, 835 P.2d 1030 *737(1992); Orion Corp. v. State, 103 Wn.2d 441, 456, 693 P.2d 1369 (1985) (strong bias toward requiring exhaustion before resort to the courts); Bowen v. Department of Soc. Sec., 14 Wn.2d 148, 154, 127 P.2d 682 (1942).
RCW 64.40.040 limits the filing of an action to "only within thirty days after all administrative remedies have been exhausted.” RCW 64.40.040. The majority errs in holding judicial review in this case was a continuation of the administrative decisionmaking process. Hayes’s RCW 64.40 claim is barred by RCW 64.40.040, as the Court of Appeals correctly determined.
C. 42 U.S.C. § 1983 and Substantive Due Process
Having found for Hayes on the basis of RCW 64.40, the majority omits discussing the Court of Appeals’ disposition of Hayes’s allegation the City violated his substantive due process rights.13 This omission is especially regrettable because it leaves as an open question a statement this Court made in Lutheran Day Care that has caused consternation and confusion in the lower courts. Further, the Court of Appeals’ decision is also based on our decisions on 42 U.S.C. § 1983 that are manifestly in error, given recent federal court interpretation of that statute.
Hayes did not have a claim under 42 U.S.C. § 1983 for violation of his right to substantive due process. First, the City’s conduct was not arbitrary and capricious under the statute. I do not believe every land use decision overturned by a superior court automatically translates into a federal constitutional tort. Second, the right Hayes seeks to *738vindicate is embodied in the Fifth Amendment and article I, section 16 of the Washington Constitution, and the City did not deprive Hayes of any property right. Finally, this is a procedural, not substantive, due process case.
1. Arbitrary and Capricious Conduct
In Lutheran Day Care, we held the county’s denial of a conditional use permit was a violation of substantive due process. We said "[s]uch a violation is made out. . . only if the decision to deny the permit is 'invidious or irrational’ or 'arbitrary or capricious.’ ” Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 125, 829 P.2d 746 (1992) (citing R/L Assocs., Inc. v. City of Seattle, 113 Wn.2d 402, 412, 780 P.2d 838 (1989)), cert. denied, 506 U.S. 1079 (1993). R/L Assocs. does not say that, however. Rl L Assocs. says "a land use decision 'denies substantive due process only if it is invidious or irrational.’ ” (Emphasis added.) R/L Assocs., 113 Wn.2d at 412 (quoting Harding v. County of Door, 870 F.2d 430, 431 (7th Cir.)), cert. denied, 493 U.S. 853 (1989). In Sintra v. City of Seattle, 119 Wn.2d 1, 23, 829 P.2d 765 (1992), published the same day as Lutheran Day Care, we said, "Arbitrary, irrational action on the part of regulators is sufficient to sustain a substantive due process claim under § 1983,” citing Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 467 (7th Cir. 1988), but also said there must be either animus or a " 'deliberate flouting of the law that trammels significant personal or property rights,’ ” quoting Silverman v. Barry, 845 F.2d 1072, 1080 (D.C. Cir.), cert denied, 488 U.S. 956 (1988). In both Rl L Assocs. and Sintra, we declared something more than mere arbitrary and capricious behavior is necessary to sustain a substantive due process claim.
In Lutheran Day Care, however, we said a violation of substantive due process can occur either from invidious or irrational action, or from arbitrary or capricious action. We held because the trial court had already found the county’s actions in the writ proceeding arbitrary and capricious, the appellant "has established as a matter of *739law and fact that the County violated substantive due process when it denied the conditional use permit.” Lutheran Day Care, 119 Wn.2d at 125.
This result has led lower courts to express "genuine confusion” as to the proper standard of review for a substantive due process violation. Norquest/RCA-W Bitter Lake Partnership v. City of Seattle, 72 Wn. App. 467, 483, 865 P.2d 18, review denied, 124 Wn.2d 1021, 881 P.2d 254 (1994). The Court of Appeals in the present case observed "serious arguments” could be made that an arbitrary and capricious decision by an agency does not necessarily equate to a violation of substantive due process, but nevertheless felt "constrained” by Lutheran Day Care. Hayes, slip op. at 11 n.8. The City devoted almost all of its supplemental brief to arguing the common law definition of arbitrary and capricious does not necessarily achieve the standard necessary for finding a due process violation. This case is an opportunity for the Court to clarify the standard of review for substantive due process claims, but, sadly, the majority has elected not to do so.
I agree with the position expressed at oral argument by amicus Pacific Legal Foundation that arbitrary and capricious conduct by an administrative agency does not ipso facto equate to a constitutional violation. As the Court of Appeals for the Fourth Circuit stated:
But to conclude that every agency decision reversed as "arbitrary and capricious” under state or federal administrative law rises to the level of a constitutional claim would distort the substantive due process doctrine. As the courts have consistently recognized, the inquiry into "arbitrariness” under the Due Process Clause is completely distinct from and far narrower than the inquiry into "arbitrariness” under state or federal administrative law. See Gardner v. City of Baltimore, 969 F.2d 63, 71 n.3 (4th. Cir. (1992); RRI Realty Corp. v. Incorporated Village of Southampton, 870 F.2d 911, 914 n.1 (2d Cir.), cert. denied, 493 U.S. 893, 110 S. Ct. 240, 107 L. Ed. 2d 191 (1989); Pearson v. City of Grand Blanc, 961 F.2d 1211, 1221 (6th Cir. 1992). While administrative law focuses on whether an agency’s decision was supported by record evi*740dence and abided by statutory criteria, substantive due process inquires into the conceivable outer limits of legitimate government power.
Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 829 n.7 (4th Cir. 1995).
I do not believe the City’s actions here violated Hayes’s substantive due process right. As we indicated in Sintra, every successful administrative appeal in the land use context should not be equated with a federal constitutional tort. Some greater deprivation of Hayes’s rights is required. This is particularly true here, where, as previously noted, the trial court in the writ of review suit did not even declare the City’s conduct to be arbitrary and capricious.
2. More Specific Constitutional Rights Apply
"Section 1983 'is not itself a source of substantive rights,’ but merely provides 'a method for vindicating federal rights elsewhere conferred.’ The first step in any such claim is to identify the specific constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271, 114 S. Ct. 807, 811, 127 L. Ed. 2d 114 (1994), quoting Baker v. McCol-lan, 443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 61 L. Ed. 2d 443 (1979). "[I]n order to proceed in a § 1983 action, a plaintiff must show that some person deprived plaintiff of a federal constitutional or statutory right, and that person must have been acting under color of state law.” Lutheran Day Care, 119 Wn.2d at 117. The challenged act must result in the "deprivation of a federally created right.” Id. at 119.14 *741The initial inquiry in the present case is whether Hayes has been deprived of some constitutionally protected property right. In re Cashaw, 123 Wn.2d 138, 143, 866 P.2d 8 (1994). The Court of Appeals did not address this question.
In Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996), the Court of Appeals for the Ninth Circuit in an en banc decision held substantive due process does not extend to areas addressed by more specific provisions of the Constitution. Armendariz followed the teachings of two United States Supreme Court cases: "Where a particular amendment 'provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, 'that Amendment, not the more generalized notion of "substantive due process,” must be the guide for analyzing these claims.’ ” Albright, 510 U.S. at 273 (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871, 104 L. Ed. 2d 443 (1989)). Armendariz, 75 F.3d at 1313.
I agree with the Armendariz analysis. Hayes’s rights are based on the Fifth Amendment and article I, section 16 of our Constitution. He must seek his remedy, if any, under those more specific provisions. In this instance, it is not clear Hayes had a property interest that could be protected under these more specific constitutional provisions.
Hayes alleged in his complaint the City deprived him "of his property interest in a land use permit.” Clerk’s Papers at 6. But it is doubtful Hayes had a property interest under state law in the Master Use Permit he applied for. If he had no property interest, then he has not stated a claim under § 1983 upon which relief can be granted. Marine One, Inc. v. Manatee County, 877 F.2d 892, 894 (11th Cir. 1989) (whether state law creates a property right is a question of law).
This Court unanimously held in Erickson & Assocs., Inc. v. McLerran, 123 Wn.2d 864, 876, 872 P.2d 1090 (1994), that Washington’s vested rights doctrine does not prevent a City from setting the time for vesting of a Master Use Permit as the date of approval, even though by statute and common law the right to a building permit vests at *742the date of application. RCW 19.27.095(1); State ex rel. Ogden v. City of Bellevue, 45 Wn.2d 492, 495-96, 275 P.2d 899 (1954). An application for a Master Use Permit is therefore not a vested right pursuant to Erickson.
Nevertheless, even though an application for a Master Use Permit does not result in a vested right to its issuance, the Court must consider if the applicant has some state-created property right of another kind to the issuance of the Master Use Permit, the deprivation of which denies him due process of law. The attempt to identify such a right has been the subject of much discussion in the federal circuit courts of appeals.
Basing their approach on language from Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972), numerous courts have found a constitutionally cognizable property right in a "legitimate claim of entitlement” to and a "justifiable expectation” of a desired land use action. When the agency must exercise its discretion, however, there is no "legitimate claim of entitlement” or "justifiable expectation.” Silver v. Franklin Township, 966 F.2d 1031, 1036 (6th Cir. 1992) (no property right in conditional zoning certificate because issuing agency had broad discretion). In Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54 (2d Cir. 1985), even though the court found the issuing agency had "engaged in egregious misconduct,” id. at 59, it held because the agency had discretion, the plaintiff had no property right in the desired action, and thus failed to state a substantive due process claim.
The court in RRI Realty Corp. v. Incorporated Village of Southampton, 870 F.2d 911, 918 (2d Cir.), cert. denied, 493 U.S. 893, 110 S. Ct. 240, 107 L. Ed. 2d 191 (1989), reinforced the Yale Auto Parts approach:
If federal courts are not to become zoning boards of appeals (and not to substitute for state courts in their state law review of local land-use regulatory decisions), the entitlement test of Yale Auto Parts — "certainty or a very strong likelihood” of issuance — must be applied with considerable rigor. Application of the test must focus primarily on the degree of discretion *743enjoyed by the issuing authority, not the estimated probability that the authority will act favorably in a particular case .... Even if in a particular case, objective observers would estimate that the probability of issuance was extremely high, the opportunity of the local agency to deny issuance suffices to defeat the existence of a federally protected property interest. The "strong likelihood” aspect of Yale Auto Parts comes into play only when the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured; an entitlement does not arise simply because it is likely that broad discretion will be favorably exercised.
Because village code conferred wide discretion, there was no property right in the desired permit, Id. at 919, and the court dismissed the claim because there was no property interest at stake.15
In the present case, the ordinance describing "edge impacts” calls for the exercise of substantial discretion by the City Council in the application of the "edge impact” ordinance. Pursuant to the analysis in the Silver and Yale Auto Parts cases, because the ordinance here required the exercise of discretion, Hayes had no constitutionally cognizable entitlement to the Master Use Permit without the 15-foot length reduction condition. His § 1983 claim fails because he did not have a property interest in the Master Use Permit.
3. Procedural Due Process
Neither the Court of Appeals nor the parties gave any attention to the nature of the claim in this case. Proper characterization of the challenged action as a violation of either procedural or substantive due process makes a dis-positive difference in the analysis and outcome: if the challenged action was a violation of procedural due process, there is no deprivation of a constitutional right if state law provides an adequate postdeprivation remedy. Parratt v. Taylor, 451 U.S. 527, 542, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981).
*744RCWs 64.40 and 36.70C provide a postdeprivation remedy as extensive as § 1983, with the added benefit that it is easier to state a claim under either RCW 64.40 or 36.70C.16
The Court of Appeals revived Hayes’s § 1983 claim after the trial court had explicitly refused to consider it. Holding the City Council’s action arbitrary and capricious, the Court of Appeals found the City liable under § 1983. Hayes v. City of Seattle, slip op. at 10-11 (Wn. App. Feb. 13, 1995). The court cited Cougar Mountain Assocs. v. King County, 111 Wn.2d 742, 757, 765 P.2d 264 (1988), for the proposition "an agency’s decision conditioning a land use permit upon mitigation of expected impacts must be supported by specific determinations of what the impacts are and how the required mitigation conditions will alleviate them.” Id. at 11. The Court of Appeals then held a "decision which is not based on such determinations is necessarily arbitrary because it is not based on due consideration of the facts.” Id.
This is the Court of Appeals’ own conclusion, because we did not say this in Cougar Mountain. The Cougar Mountain Court did exactly what the trial court in this case did: it remanded the agency decision back to the *745agency for a more complete explication of the reasoning for its decision. There was no holding that an incompletely articulated SEPA decision by an agency equates to a denial of a constitutionally protected right to due process of law. Ultimately, in Cougar Mountain, as the Court of Appeals correctly noted, the trial court "was of the opinion that the Council could legally do what it did and was only concerned with the clarity of the record.” Hayes, slip op. 8. Clarity of the record is a procedural concern, not a substantive issue.
The Court of Appeals also equated insufficient findings (which might have been remedied on remand) with arbitrary and capricious conduct, holding the absence of support in and of itself was arbitrary "because it is not based on due consideration of the facts.” Slip op. at 11. As noted above, the affidavit of Councilmember Street was uncontroverted and to the contrary: the City Council did engage in due consideration of the facts. The failure of an administrative tribunal adequately to support its conclusions was a procedural defect with respect to SEPA, a procedural statute. Save Our Rural Env’t v. Snohomish County, 99 Wn.2d 363, 371, 662 P.2d 816 (1983); Cougar Mountain, 111 Wn.2d at 743 ("the County erred in the procedure by which it denied Cougar Mountain’s application . . .[by failing] to set forth precisely the significant environmental impacts it considered in denying Cougar Mountain’s application.”).
Plainly, the proper characterization of the due process defect the Court of Appeals found here is procedural, not substantive. Pursuant to Parratt, there is no federal cause of action for a violation of procedural due process when state law provides an adequate postdeprivation remedy.
CONCLUSION
The majority’s analysis in this case tortures both traditional Washington law on claim preclusion and the definition of the administrative remedy. Moreover, by failing to address the issue, the majority leaves in place the *746erroneous Court of Appeals analysis of 42 U.S.C. § 1983 and perpetuates Washington’s aberrational analysis of that federal tort in land use matters.
The City’s conditioning of the Master Use Permit Hayes sought was an appropriate exercise of the City’s discretion under the applicable ordinance. While the permissible scope of the ordinance may be debatable, Hayes does not challenge the ordinance itself, only its application to him. He has not been deprived of any constitutionally protected property right, and therefore has no constitutional cause of action. Even if he has been deprived of such a right, the deprivation occurred, if at all, through a denial of procedural due process. Because RCW 64.40 provided Hayes with an adequate postdeprivation remedy, he has no federal cause of action. Because Hayes did not timely assert his state remedy, he lost it.
This case is here now only because Hayes did not like the discretionary decision the City Council reached. There are no great constitutional principles at stake. "Resolving routine land-use disputes that inevitably and constantly arise among developers, local residents, and municipal officials is simply not the business of the federal courts.” Gardner v. Baltimore Mayor & City Council, 969 F.2d 63, 67-68 (4th Cir. 1992). Nor is it the business of the Washington Supreme Court. We should exercise judicial restraint and allow local land use disputes to be resolved locally in the community intimately affected.
I would reverse the Court of Appeals and remand this case to the trial court with instructions to dismiss it with prejudice.
Reconsideration denied July 31, 1997.
The majority insinuates Street’s affidavit was not timely offered, surfacing only after the lawsuit was commenced. Majority op. at 718 n.6. The affidavit, however, was properly submitted in response to Hayes’s motion for summary judgment specifically to dispute declarations that the City Council gave Hayes *729short shrift. There was no reason for Street’s affidavit to "surface” prior to the lawsuit and prior to the accusatory declarations.
The majority also states, "Significantly, the facts set forth in that affidavit are not found in the administrative record.” Supra note 6. The administrative record before us is sparse. There is no document in that record in which it would have been either appropriate or necessary to publish Councilmember Street’s refutation of Hayes’s allegations of cavalier treatment.
The majority offers as support for its conclusion the City Council’s decision was arbitrary and capricious an excerpt from a staff memorandum, which opined the City lacked SEPA authority to require further mitigation of the Hayes project. Majority op. at 709 n.l. The staff member who prepared the memorandum, Mary Denzel, later met with the Council’s Land Uses Community Development Committee on December 15, 1989. During that meeting, Councilmember Street discussed Ms. Denzel’s memorandum with her and stated his continuing concern that the proposed building needed bulk mitigation. Clerk’s Papers at 358-63.
After discussion of the Hayes project and the applicable ordinance, Ms. Den-zel changed her mind and agreed with Councilmember Street’s interpretation of the ordinances. She seconded his motion to condition issuance of the master use permit on reduction of the length of Hayes’s building by 15 feet, and voted with him in favor of the motion. Clerk’s Papers at 364. Thus, whatever reservations Ms. Denzel may have expressed in her memorandum, they were laid to rest as a result of her meeting with Councilmember Street on December 15. She did not voice any disagreement with Councilmember Street’s conclusion that "while the setback rules do establish clear and specific statutory basis for setback, they do not — they are not definitive to meet with respect to either height or length of buildings and that therefore we believe that there is authority to look at the length of this building and we have done it.” Clerk’s Papers at 367.
Plainly, Ms. Denzel’s memorandum does not, as the majority suggests, establish the City Council acted arbitrarily and capriciously by ignoring her advice. Even if the City Council had acted contrary to her advice, however, that would hardly, in and of itself, constitute arbitrary and capricious decisionmaking. The legal authority of the City to take the action it took is not in dispute; Hayes did not appeal it. Thus, Ms. Denzel’s legal conclusion in her memorandum (the record does not reveal if she is a lawyer), that there was no SEPA authority for the City to reduce the length of the building, is both irrelevant here and contradicted by her subsequent acquiescence in the propriety of the length reduction.
“While this court has not held that aesthetic factors alone will support an exercise of the police power, such considerations taken together with other factors can support such action.” Polygon Corp. v. City of Seattle, 90 Wn.2d 59, 70, 578 P.2d 1309 (1978). But the ordinance here may arguably confer too much discretion. See, e.g., Burien Bark Supply v. King County, 106 Wn.2d 868, 725 P.2d 994 (1986) ("An ordinance is unconstitutional when it forbids conduct in *730terms so vague that persons of common intelligence must guess at its meaning and differ as to its application.”); Anderson v. City of Issaquah, 70 Wn. App. 64, 82-83, 851 P.2d 744 (1993) (deprivation of due process when design review board can create ad hoc standards during design review process). We need not decide the propriety of the ordinance, however, as Hayes has not challenged it.
The Court of Appeals decided as a policy matter it would not apply the principles of res judicata it had correctly enunciated. Instead, the court erroneously deferred to what it thought were the more important principles governing the three-year statute of limitation for § 1983 claims. Hayes, 76 Wn. App. at 880-81. The Court of Appeals’ solicitude for § 1983 claims was misplaced, however. The United States Supreme Court held in Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984), the Full Faith and Credit Clause mandates subordination of § 1983 claims to state claim preclusion law. Thus, we must apply Washington claim preclusion law here.
It is not entirely clear why Hayes pleaded his writ suit in these terms. RCW 7.16.040 sets forth the elements required for the issuance of a writ. Because this case involves a challenge to an ordinance promulgated pursuant to SEPA, the clearly erroneous standard of review is mandated. Cougar Mountain Assocs. v. King County, 111 Wn.2d 742, 747-50, 765 P.2d 264 (1988) (adopting clearly erroneous test to evaluate challenge to denial of subdivision application under *733SEPA); Polygon Corp. v. City of Seattle, 90 Wn.2d 59, 69, 578 P.2d 1309 (1978) (adopting clearly erroneous test to evaluate challenge to denial of building permit under SEPA); Victoria Tower Partnership v. City of Seattle, 59 Wn. App. 592, 596-97, 800 P.2d 380 (1990) (citing Cougar Mountain and Polygon as authority for employing clearly erroneous test to evaluate challenge to denial of project permit under SEPA), review denied, 116 Wn.2d 1012 (1991). While a decision that is arbitrary and capricious is also clearly erroneous, the proper standard of review for the writ of review in this case is the clearly erroneous standard.
I agree with Justice Scalia that substantive due process is an oxymoron, not a constitutional right. United States v. Carlton, 512 U.S. 26, 39, 114 S. Ct. 2018, 129 L. Ed. 2d 22 (1994) (Scalia, J., concurring). See also Newell v. Brown, 981 F.2d 880, 885 (6th Cir. 1992) (substantive due process is a "durable oxymoron”), cert. denied, 510 U.S. 842 (1993); Gosnell v. City of Troy, 59 F.3d 654, 657 (7th Cir. 1995) (substantive due process is an oxymoron and procedural due process is a redundancy); United States v. Fitzgerald, 724 F.2d 633, 639 (8th Cir. 1983) (en banc) (Arnold, J., concurring) (substantive due process is "an oxymoron if ever there was one”), cert. denied, 466 U.S. 950 (1984); Brower v. Inyo County, 817 F.2d 540, 544 n.4 (9th Cir. 1987) ("It is probably too late to express continuing dismay over the use of the oxymoron 'substantive due process.’ ”), rev’d on other grounds, 489 U.S. 593, 109 S. Ct. 1378, 103 L. Ed. 2d 628 (1989).
The federal circuit courts of appeals in land use cases uniformly require some property interest to be at stake before embarking upon a due process analysis. See, e.g., Zahra v. Town of Southold, 48 F.3d 674, 680 (2d Cir. 1995); PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28, 30 (1st Cir. 1991); Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 827 (4th Cir. 1995); Shelton v. City of College Station, 780 F.2d 475, 479 (5th Cir.), cert. denied, 477 U.S. 905, and 479 U.S. 822 (1986); Silver v. Franklin Township, 966 F.2d 1031, 1036 (6th Cir. 1992); New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1479 (7th Cir. 1990); Ellis v. City of Yankton, 69 F.3d 915, 917 (8th Cir. 1995); Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994); Jacobs, Visconsi & Jacobs Co. v. City of Lawrence, 927 F.2d 1111, 1115 (10th Cir. 1991); Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1379 (11th Cir. 1994), cert. denied, 115 S. Ct. 729 (1995).
A comprehensive listing of other courts employing the entitlement analysis appears at Kenneth B. Bley, Use of the Civil Rights Act to Recover Damages in Land Use Cases, CA34 A.L.I. - A.B.A. 381, 389-90 (1995) (citing numerous cases).
The Washington remedy for arbitrary and capricious land use decisions provides a less arduous path to reach the trier of fact. To state a claim under RCW 64.40, one need only be the owner of a property interest. RCW 64.40.010(3) defines property interest as "any interest or right in real property in the state.” Thus, a claimant under the Washington statute does not have to establish either a vested right or "legitimate claim of entitlement” (Roth) to the action he or she desires the agency to take, as in a § 1983 claim; he or she need only establish an ownership interest in the affected land. With the passage of the Land Use Petition Act in 1995, RCW 36.70C, it now appears even easier for plaintiffs to redress grievances stemming from actions by local jurisdictions: "In order to grant relief under this chapter, it is not necessary for the court to find that the local jurisdiction engaged in arbitrary and capricious conduct.” RCW 36.70C.130(2) (setting forth at subparagraph (1) six disjunctive standards for establishing liability).
"While it is difficult to define an 'adequate remedy’ in a given situation, this remedy at least should serve the functions of compensating the victim and deterring further arbitrary conduct by government officials.” David H. Armistead, Substantive Due Process Limits on Public Officials’ Power to Terminate State-Created, Property Interests, 29 Ga. L. Rev. 769, 804 (1995). RCW 64.40 appears to be an adequate state remedy. It provides for damages to the victim, and its attorney fee provision has a deterrent effect.