June 8, 2018

Can an administrative agency strip you of your right to put on evidence?

By Brian T. Hodges Senior Attorney

In Washington state, property owners who want to challenge the constitutionality of a new land-use or critical area restriction must first try their case to the Growth Management Hearings Board—an administrative agency that lacks the authority to decide constitutional issues. Although this requirement was meant to streamline the ordinary types of legal challenges arising from land-use regulation, it is a frustrating and often futile endeavor for anyone asserting constitutional claims. A recent decision from a Washington trial court took that process from the realm of the frustrating to the unconscionable.

In 2014, the City of Bainbridge Island recently adopted one of the most aggressive shoreline protection ordinances in the State. Among other onerous provisions, the City enacted laws forbidding homeowners from gardening without permit approval and generally declaring “all human activity” within 200 feet of a shoreline illegal without government approval. Back in 2014, several shoreline residents challenged the ordinance as violating a number of constitutional provisions in the case Preserve Responsible Shoreline Management v. City of Bainbridge Island.

The case went to the Growth Board first, which unsurprisingly upheld the ordinance against PRSM’s statutory challenges. The case then went to the superior court to hear PRSM’s constitutional claims. That’s where things went terribly sideways. Several of PRSM’s constitutional claims require evidence of the ordinance’s impact on fundamental rights. That type of evidence can be very simple. For example, PRSM offered a brief statement from a local resident that gardening and landscape design is expressive conduct—a statement that could be accomplished in a 3-page declaration.

The City, however, argued that because the case was technically “on appeal” from an administrative agency, PRSM had no right to put on any evidence of its constitutional claims. PRSM called the City out on its nonsense, pointing out that every citizen has a right to put on evidence necessary to prove the elements of a constitutional claim when that claim is properly raised for the first time before the court that has exclusive and original jurisdiction. Without addressing this argument (or the law requiring evidence), the trial court refused to allow PRSM to submit any evidence.

PLF attorneys sought immediate appellate review of the trial court’s decision because trying its constitutional case without the ability to offer the evidence required would be futile. PLF argued that fundamental notions of due process demand that litigants be provided a fair opportunity to put on evidence. The fact that land-use challenges must go through an administrative agency before they can be filed in the superior court does not strip individuals of that fundamental right. Earlier this week, the Court of Appeals granted direct review of this important question. We expect the issue to be briefed and argued by the end of the year.

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Preserve Responsible Shoreline Management (PRSM) v. City of Bainbridge Island; Olympic Stewardship Foundation (OSF) v. Growth Management Hearings Board

Coastal counties in Washington State passed “critical areas” ordinances requiring all shoreline property owners to dedicate a “buffer” zone and a strip of their beach property to the public as a mandatory condition on any new development. The counties assert this purported power under the state’s Shoreline Management Act, in which Washington’s legislature explicitly rendered property rights “secondary” to the public’s interest in the environment. Citizens groups in Bainbridge Island and Jefferson County challenged these conditions as unconstitutional takings because the need for buffers were not supported by the scientific record and took more than necessary to mitigate any negative impacts cause by development of the property. PLF represents the Bainbridge Island property owners (PRSM) in the challenge, which was stayed pending resolution of the Jefferson County case (OSF), in which PLF participated as amicus.

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