March 21, 2012

20 years of Pacific Northwest victories: stopping King County's land grab

By Brian T. Hodges Senior Attorney

We continue our survey of PLF’s Pacific Northwest victories with Citizens’ Alliance for Property Rights v. Sims, the lawsuit that put an end to King County, Washington’s campaign to force rural landowners to dedicate huge portions of their property to the government.

Property owners celebrate victory

In 2004, King County enacted a “critical areas” ordinance that required property owners in the county’s rural areas to set aside up to 65% of their lots as a condition for receiving a clearing and grading permit.  Over time, as property owners sought permission to develop their property, the ordinance would have had the effect of rendering large privately controlled areas of the county unusable for anything but vegetated “buffer” zones.  Property owners were not to be compensated for their losses.

PLF brought suit on behalf of the property rights group Citizens’ Alliance for Property Rights and five individuals whose land was subject to the ordinance.  We argued that the county’s ordinance was an unlawful “tax, fee, or charge” on development under Washington law, because the requirement to set aside a uniform and predetermined amount of property was not in any way related to proposed development.  In 2008, the Washington Court of Appeals ruled that PLF had proven that the ordinance was indeed an illegal exaction because the county failed to show that the set-aside was proportional in scope to any impacts that might result from development of the regulated lots.

The Citizens’ Alliance case was, in many ways, a product of decades of work on dozens of cases in which PLF argued for constitutional limits on the government’s authority to exact property from landowners as a condition of development approval.  Most notably, the Citizens’ Alliance court applied the U.S. Supreme Court’s “rough proportionality” rule from Dolan v. City of Tigard, which prohibits the government from imposing conditions that are not related in scope to development impacts.

While Citizens’ Alliance was a remarkable victory, more work needs to be done in this area of the law.  One problem is the creeping in of the “precautionary principle” to exactions cases.  Brian T. Hodges and I examined that issue in our 2010 article Have Washington Courts Lost Essential Nexus to the Precautionary Principle?  Additionally, PLF continues to litigate other important exactions cases, such as Kitsap Alliance of Property Owners and Olympic Stewardship Foundation.

Property owners everywhere may take hope in the knowledge that PLF is leading efforts to make sure government-imposed conditions on the use of property are reasonable and comply with the paramount constitutional protections that property owners are entitled to enjoy.

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