20 years of Pacific Northwest victories: the enduring impact of the HEAL decision

May 15, 2012 | By BRIAN HODGES

One way that PLF can assure that its property rights victories have a long-lasting impact is to “connect the dots” between past cases and current controversies.  A good example is the Washington Court of Appeals’ 1999 decision in Honesty In Environmental Analysis and Legislation v. Seattle, which stands out as the first Washington case to clarify the important constitutional limitations on how far governments can go in trying to preserve critical areas on private property.

The “HEAL” case arose shortly after Washington adopted the Growth Management Act (GMA) – a state law that, in part, requires every city and county to adopt development restrictions for properties located in so-called “critical areas.”  The legislature was anything but clear in how local governments were to fulfill this mandate, stating only that cities and counties include “best available science” in the process of developing critical area regulations.  While the concept seems pretty simple, carrying out this dictate befuddled planners, and environmentalists and anti-growth activists pounced on this law as an opportunity to stymie development and lock private property into conservation areas.  PLF immediately recognized the threat and jumped into the fray to protect property rights.

Acting under the GMA’s mandate, the City of Seattle adopted critical area regulations that prohibited any development on private property containing steep slopes.  The city claimed that its environmental consultants had concluded that an outright development ban was necessary to prevent the risk of further erosion, and refused to consider any contrary scientific viewpoints, including studies concluding that city’s prohibition against steep slope disturbance would not in fact prevent erosion.

PLF, representing the citizen group HEAL, challenged the city’s development ban, arguing that the Constitution limits on how far the government can go in regulating private property.  Specifically, PLF relied on its 1987 U.S. Supreme Court victory in Nollan v. California Coastal Commission to argue that the government is required to demonstrate that a condition on development, such as a mandatory set-aside, is sufficiently related to identified impacts of the development.  If it cannot meet this burden, its development condition is unconstitutional and void.

The Court of Appeals agreed with PLF, holding:

[I]f the City proposed a policy prohibiting development on slopes steeper than a 40 percent grade or requiring expensive engineering conditions for any permitted project, only the best available science could provide its policy makers with facts supporting those policies and regulations which, when applied to an application, will assure that the nexus and rough proportionality tests are met.  If the City failed to use the best available science here in making its policy decision and adopting regulations, the permit decisions it bases on those regulations may not pass constitutional muster under Nollan and Dolan [v. City of Tigard].  The science the legislative body relies on must in fact be the best available to support its policy decisions.  Under the cases and statutes cited above, it cannot ignore the best available science in favor of the science it prefers simply because the latter supports the decision it wants to make. If it does, that decision will violate either the nexus or rough proportionality rules or both.

Because the city did not evaluate any of the contrary scientific conclusions when adopting its development ban, the ordinance was invalid.

The value of HEAL endures.  PLF’s 2008 victory in Citizens’ Alliance for Property Rights v. Sims, relied on HEAL to connect the dots between Nollan and a King County critical area regulation that demanded all rural property owners to set aside between 50% and 65% of their land as a natural vegetation area.

In Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Board, the dots connected by HEAL and Citizens’ Alliance resulted in a ruling that the constitutional principles set out in Nollan and Dolan apply directly to any environmental regulation that places a condition on new development.

And, in Olympic Stewardship Foundation v. Western Washington Growth Management Hearings Board, PLF is asking Washington’s Supreme Court to further connect the dots set out in those cases to invalidate an ordinance requiring certain property owners to preserve 100% of the vegetation on their lots – a de facto prohibition on all development and use of private property.