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.
Because of its craggy coastline and numerous coastal islands, Washington State has about 28,000 miles of shoreline, all of which are heavily regulated. The state’s Shoreline Management Act requires coastal cities and counties to adopt “shoreline master programs” (SMPs) that restrict development and use of property within 200 feet of the ordinary high water mark in order to protect natural and cultural resources.
In 2014, the City of Bainbridge Island updated its SMP, imposing “enhancement and restoration” conditions that require landowners to dedicate a perpetual conservation easement and adopt the city’s vegetation standards in order to receive a permit. The city imposes these conditions automatically, without any regard to the nexus and proportionality requirements necessary to avoid uncompensated takings under the Fifth Amendment. The automatic imposition of these permit conditions also violates Washington state law that requires a city to show that its mitigation standards are necessary to protect existing shoreline ecological functions. Representing a coalition of property owners, Preserve Responsible Shoreline Management, PLF is appealing these conditions to the Kitsap County superior court.
In a related case, in which PLF submitted an amicus brief, property owners challenged Jefferson County’s SMP, which requires all shoreline property owners to dedicate a 150-foot buffer as a mandatory condition on any new development and that certain property owners dedicate a public access easement across their property. This latter requirement is identical to the one struck down as unconstitutional by the U.S. Supreme Court in Nollan v. California Coastal Commission. The Washington Court of Appeals was undeterred by this precedent and others, however, and upheld all the SMP restrictions in their entirety. The property owners filed a motion for reconsideration, which is pending.