(concurring in part, dissenting in part) — I agree with the majority that the set aside ordinance vio*774lates RCW 82.02.020;20 however, I disagree a municipality may constitutionally condition plat approval upon the plat developer obtaining secondary road access over adjacent private property. A condition which allows neighboring property owners to determine whether or not a plat will be approved deprives the developer of his property without due process as a matter of law. On point are Eubank v. City of Richmond, 226 U.S. 137, 143-44, 33 S. Ct. 76, 57 L. Ed. 156 (1912) and Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 49 S. Ct. 50, 73 L. Ed. 210 (1928), cases neither discussed nor even cited by the majority.
To narrow the issue I assume for the purpose of this opinion the requirement for alternative road access is reasonable and necessary for fire protection purposes. Notwithstanding, the question still persists whether the responsibility to obtain this access over privately owned lands may be constitutionally imposed on the private developer rather than borne by the government itself, the more usual means to achieve such an end.
Absent meaningful analysis, the majority characterizes the question as whether the condition is “impossible” to meet. See Majority at 765-68. I therefore also assume for the purpose of this analysis it would be “possible” for the private developer to meet this condition in the sense that I assume most people have their price, and neighboring property owners might be induced to grant a right-of-way for some monetary consideration, however exorbitant. But even then, this condition places in private hands authority to veto or demand extortion for approval of this development. Whether this private control over the ability of a *775property owner to secure a permit deprives the developer of his property without that process which is constitutionally due is the question.
Eubank, 226 U.S. 137, is instructive. There the Supreme Court struck down a city ordinance which required the establishment of a building line along any street where it was requested by the owners of two-thirds of the property. Finding the regulation deprived one owner of his property without that constitutionally required process due, the Supreme Court observed the ordinance allowed one set of owners to determine “not only the extent of use but the kind of use which another set of owners may make of their property,” id. at 143, and added:
The statute and ordinance, while conferring the power on some property holders to virtually control and dispose of the property] rights of others, creates no standard by which the power thus given is to be exercised; in other words, the property holders who desire and have the authority to establish the line may do so solely for their own interest or even capriciously.
Id. at 143-44 (emphasis added).
The scope of this due process right was further explained in Roberge, 278 U.S. 116. There a Seattle ordinance conditioned the building of a philanthropic home for children or the elderly upon the consent of the owners of two-thirds of the property within 400 feet. Id. at 118. Noting, “[t]here is no provision for review under the ordinance; their failure to give consent is final,” id. at 122, the Supreme Court observed the de facto veto power vested in adjacent landowners authority to prevent the requested land use, “uncontrolled by any standard or rule prescribed by legislative action.” Id. at 121-22. Because the other landowners “are not bound by any official duty, but are free to withhold consent for selfish reasons or arbitrarily and may subject the trustee to their will or caprice [,] [t]he delegation of power so attempted is repugnant to the due process clause of the Fourteenth Amendment.” Id. at 122 (citation omitted) (citing Eubank, 226 U.S. at 143).
*776The condition here at issue requires a second road, whereas geography dictates that road must cross one or more parcels of privately owned property.21 Although the property owner to the east states she will never grant such an easement,22 the fact of the matter is that it is entirely within her unbridled discretion to change her mind to grant an easement and, if so, at what price. Unlike the government, Isla Verde has no power of private condemnation for this purpose.23 Thus the government has placed this developer’s intended use and enjoyment of its own property subject to the will of every adjacent landowner from whom government-required access must be obtained.
As in Roberge, this developer is made beholden to the private decision or inaction of others, there is no provision for review under the regulation, and the refusal to consent is final. See Roberge, 278 U.S. at 121-22. Also, as in both Eubank and Roberge, the regulation here permits an arbitrary decision to withhold consent based on malice or any number of other dark motives—all without review.
Numerous other jurisdictions have held land use permits cannot be denied based solely on the opposition of adjacent landowners. According to the Minnesota Supreme Court, although neighborhood sentiment may be taken into consideration in any zoning decision, “it may not constitute the sole basis for granting or denying a given permit.” N.W. College v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn. 1979). The same court held a conditional use permit may be denied for public safety reasons: “[n]evertheless, denial of a conditional use must be based on something more concrete than neighborhood opposition and expressions of concern *777for public safety and welfare.” Chanhassen Estates Residents Ass’n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn. 1984).
The Utah Supreme Court, while acknowledging it is not improper to solicit or rely on the advice of neighboring landowners, said “the consent of neighboring landowners may not be made a criterion for the issuance or denial [of\ a conditional use permit.” Thurston v. Cache County, 626 P.2d 440, 445 (Utah 1981) (emphasis added). The Utah Court of Appeals, citing Thurston, said a city council acted arbitrarily and capriciously when it denied a conditional use permit based on such “public clamor.” Davis County v. Clearfield City, 756 P.2d 704, 712-13 (Utah Ct. App. 1988).
Similarly, the Wyoming Supreme Court has stated, “[t]he opposition of neighbors is not one of the considerations to be taken into account” when considering a development permit. Bd. of County Comm’rs v. Teton County Youth Servs., Inc., 652 P.2d 400, 411 (Wyo. 1982). There the court set aside a county commission’s denial of a development permit because the commission found that neighbors opposed the proposed development and the court could not determine how much weight the commission gave to such “unauthorized criteria” in making its decision. Id.
Collectively these cases all demonstrate what, intuitively, should be fundamentally plain: neighboring landowners should not hold an uncircumscribed veto power over a landowner’s use and enjoyment of his or her own property. A condition which permits such veto violates due process.
The city’s action here was also imposed against the advice of the City Attorney who presumably recognized the constitutional problem, as do I. Dove Hill Subdivision File Records at 139. Moreover, one city council member voted against the motion not to accept the preliminary plat based on the lack of a second road stating, “I support the issues that were raised here. I personally believe there needs to be a second access. I have serious question in my mind that we have the legal right to do so and I would like the record to *778reflect that.” Id. (emphasis added). I agree with the able council member.
I therefore dissent because the secondary access road condition does not pass constitutional muster.
Alexander, C.J., concurs with Sanders, J.
Reconsideration denied August 28, 2002.
I disagree with Justice Johnson’s concurrence that we need more facts in the record to properly analyze the case. Rather the very nub of the problem is this local ordinance requires a 30 percent set aside in cash or kind without regard to specific facts. Further factual development cannot cure an ordinance which imposes a fee contrary to state statute. We must deal with the ordinance as adopted because local authorities have no authority to retroactively apply new or different ordinances to plats already vested to the old ones, see RCW 58.17.033(1), nor do local authorities have the authority to require compliance with land use controls not formally enacted. See W. Main Assocs. v. City of Bellevue, 106 Wn.2d 47, 51, 720 P.2d 782 (1986).
See Clerk’s Papers (CP) at 252; Dove Hill Subdivision File Records (SFR) at 277 (topography north of Dove Hill would not allow a street to the north and west to connect to a public right-of-way); see also SFR at 128 (secondary access to be constructed “from the end of NW Sierra Lane (in Dove Hill) to an acceptable access point to the east”).
“Now also as one of the property owners to the east, you will not receive permission for an easement during my lifetime.” CP at 125 (Camas City Council Meeting (June 26, 1995)).
Brown v. McAnally, 97 Wn.2d 360, 370, 644 P.2d 1153 (1982).