Article: are critical area buffers unconstitutional?

August 31, 2017 | By BRIAN HODGES

Today, the Seattle Journal of Environmental Law published my article, Are Critical Area Buffers Unconstitutional? Demystifying The Doctrine of Unconstitutional Conditions. Although the article focuses on developments in Washington state law, it contains arguments relevant to property rights practitioners elsewhere. For example, the article explains why a demand that a landowner dedicate a “buffer area” takes valuable property rights. It also dispels the mistaken belief that conditions imposed pursuant to generally applicable legislation should be subject less rigorous scrutiny than all other conditions.


Washington’s cities and counties are increasingly demanding that owners of residential shoreline properties dedicate large, predetermined critical area buffers as a mandatory condition of any new development. Such demands, when imposed without regard to the specifics of the land use proposal, would appear to violate the essential nexus and rough proportionality tests established by the U.S. Supreme Court in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). Early decisions from Washington courts faithfully applied these tests, invalidating open space and buffer dedications. But in a series of decisions beginning with Kitsap Alliance of Prop. Owners v. Cent. Puget Sound Growth Mgmt. Hearings Bd. (KAPO), 160 Wash. App. 250, 273, 255 P.3d 696 (2011), the courts have proven reluctant to hold buffer requirements to the heightened scrutiny demanded by Nollan and Dolan. This Article reviews the state of the law regarding the doctrine of unconstitutional conditions both before and after the KAPO decision with particular regard to the source of the constitutional doctrine and the appropriate degree of scrutiny. The Article concludes that fidelity to the constitution requires that critical area buffers, imposed as a mandatory condition on new development permits, must be subject to heightened scrutiny.