March 5, 2012

Constitutionality of Kitsap County’s shoreline buffers submitted to U.S. Supreme Court

By Brian T. Hodges Senior Attorney
Why should a landowner have to dedicate his parking lot as a fish habitat area?

PLF’s constitutional challenge to Washington state’s shoreline buffer scheme is pending before the U.S. Supreme Court.  The case, Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Board (KAPO) , began over a half decade ago, when Kitsap County, acting under the mandate of Washington’s Growth Management Act, declared all private shorelines “critical areas.”  The County adopted a regulation that requires every shoreline property owner to dedicate either 50 or 100 feet of their property as a conservation buffer in order to receive any new permit approval. 

Simply put, the law uses the permit process as an opportunity to take private property that the government would rather use to enhance fish habitat without paying for the land.  The Constitution protects against schemes like this, PLF argues in its petition to the U.S. Supreme Court.  The County’s regulation constitutes a regulatory taking under the U.S. Supreme Court cases, Nollan v. California Coastal Commission and Dolan v. City of Tigard.

Last week, Kitsap County filed a joint opposition brief with Futurewise and a handful of other environmentalist organizations.  Their response was interesting.  They did not dispute PLF’s argument that the Washington court of appeals decision, which upheld the buffer regulation, circumvented the constitutional tests set out in Nollan and Dolan.    Instead, the County and its environmentalist allies insist that the Washington state court “got it wrong” when it concluded that a critical area regulation must comply with the constitution.  Apparently, they know that the “critical areas” scheme puts private property to a public use – they just don’t want to have to pay for the property.  While their position is not surprising, it is eye-opening.

Earlier today, PLF filed the final brief in support of KAPO’s petition to the U.S. Supreme Court.  By the end of this month, we should know whether the Court will take up this important issue and protect the rights of Washington’s property owners.

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