May 14, 2015

Fighting to protect San Juan property owners from land grab

By Brian T. Hodges Senior Attorney

On June 2, 2015, Division I of the Washington State Court of Appeals is set to hear oral argument in the first state case seeking to limit government’s ability to coerce property from land use applicants since PLF’s landmark victory in Koontz v. St. Johns River Water Mgmt. Dist. (2013).

The case, Common Sense Alliance v. Growth Management Hearings Board, involves a challenge to San Juan County’s newly updated critical areas ordinance. That ordinance 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 filed an amicus brief in this case, arguing 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, the County cannot even 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.

For decades, Washington faithfully followed the instruction of Nollan and Dolan, striking down numerous ordinances that used the permit process as an opportunity to grab private property. But, in recent years, courts have drifted away from the rigorous cause-effect analysis required by the U.S. Supreme Court, replacing it with a relativistic means-end inquiry. Most notably, in 2011, Division II of Washington’s Court of Appeals held that the government can lawfully demand a land dedication if it can show that its use of the private property would advance a government objective, like protecting the environment or alleviating traffic congestion.

That standard is clearly wrong and runs contrary to one of the most fundamental principles of regulatory takings law, which is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States (1960). We hope that the court will take the opportunity to correct course on this most important constitutional protection.

All of the briefs in this appeal are available here.

What to read next