March 6, 2015

Fighting to protect San Juan property owners from land grab

By Brian T. Hodges Senior Attorney

Yesterday, PLF attorneys filed an amicus brief in support of San Juan County’s shoreline property owners in the case, Common Sense Alliance v. Growth Management Hearings Board. At issue is San Juan County’s update to its critical areas ordinance, which, in part, conditions approval of any new development of a shoreline property upon the dedication of a water quality buffer designed to mitigate for all pollution entering and crossing over the shoreline properties, including pollution/storm water caused by neighboring land uses (including public roads).

The County’s idea is simple—making shoreline property owners bear the burden of solving the region’s stormwater runoff problems—but violates unconstitutional conditions doctrine. PLF’s amicus brief argues that the buffer program runs afoul of the “essential nexus” and “rough proportionality” standards of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), because the County cannot show that its buffers are necessary to mitigate impacts caused by the proposed development. Indeed, it cannot make the necessary showing because its regulations do not limit the size of the buffers to mitigate only those negative externalities caused by the conditioned development proposal.

Relying on PLF’s victory in Koontz v. St. Johns River Water Mgmt. Dist. (2013), the amicus brief aims at clearing up some confusion that had arisen among the courts of appeals in recent years. For example, in 2011, Division II of Washington’s Court of Appeals misconstrued Nollan and Dolan as establishing a due process test, subjecting critical areas ordinances to minimal scrutiny under a rational basis test rather than the heightened scrutiny required by the U.S. Supreme Court. We hope that the court will take the opportunity to correct Division II’s harmful error.

All of the briefs in this appeal are available here.

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