January 24, 2012

Fighting Washington’s shoreline land grab

By Brian T. Hodges Senior Attorney

Washington’s state and local governments are determined to take control over privately owned shorelines away from property owners. Over the past several years, we have seen wave after wave of regulations trying to claim the shorelines. The most recent regulatory push has targeted the permit process as the best opportunity for the government to force landowners to dedicate their shorelines to public use in exchange for ordinary permit approvals. PLF’s Northwest Center is currently challenging the constitutionality of this type of extortion in two cases.

In Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Board (KAPO), PLF challenged a regulation that requires every shoreline property owner to dedicate either 50 or 100 feet of their property as a conservation buffer as a mandatory requirement for any new permit approval. PLF challenged this scheme as violating the regulatory takings tests set out in the U.S. Supreme Court cases, Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). Together, Nollan and Dolan created the nexus and proportionality tests, which require the government to prove that its demand that a landowner dedicate a chunk of property in exchange for permit approval is necessary to mitigate for or avoid some harm that would otherwise be caused by the proposed development.

KAPO is currently pending on a petition for a writ of certiorari before the U.S. Supreme Court.  As reported last month, the Supreme Court requested that Kitsap County file a response to our petition.  This is a positive development. We expect the Court to decide whether it will take this case in March of this year.

In Olympic Stewardship Foundation v. Western Washington Growth Management Hearings Board (OSF), PLF challenged a Jefferson County regulation that requires all property owners in a river valley to dedicate large portions of land as an environmental preserve, so that the river will have a fully intact buffer (e.g., an undisturbed natural vegetation area) in the event the river changes course and runs adjacent to the regulated property. Again, PLF challenged this regulation under the Nollan and Dolan regulatory takings doctrine.

Last September, Division II of Washington’s Court of Appeals dismissed OSF as “unripe” (not ready for a court to review). This ruling was in error, and we filed a motion for reconsideration explaining that our claims are ripe and the constitutional issue is ready for review (the County’s attorney filed a brief agreeing that our claims were ripe). This case has been pending on reconsideration for five months. We hope to receive a ruling on the merits of our constitutional challenge any day.

One thing we have learned from these, and other similar cases, is that, when challenged, the government always claims that its land grab is “necessary” to protect the environment. Of course, as used by the government, “necessity” is a bit of a moving target, which usually translates to “the most convenient and least costly way for the government to estimate the most amount of land it could justifiably take to achieve some public goal.” The government’s claims of “necessity,” however, ring hollow when it constantly changes its mind about how much land it wants.

In KAPO, for example, the government demanded that every shoreline property owner dedicate a 50- to 100-foot conservation area. In OSF, the county wants riverfront property owners to create conservation areas ranging from dozens to thousands of feet in width. Other cities and counties have demanded anywhere from 30- to 250-foot buffers. For years, Washington’s Department of Ecology claimed that shorelines “need” up to 250-foot buffers, but in response to large uproar from shoreline residents, it has now taken the position that 30- to 60-foot buffers are sufficient to protect all of the ecological functions that could potentially exist on a residential shoreline lot.  It’s enough to make your head spin. And, at the end of the day, all of the hyperbole and rhetoric about how much land the government wants is irrelevant to a regulatory takings challenge under the tests set out in Nollan and Dolan.

Commandeering a homeowner’s shoreline to protect the environment – no matter how popular or laudable the goal – puts private property to a public use, and is subject to the Takings Clauses of the U.S. and Washington Constitutions. Claims of some public benefit, standing alone, have never been sufficient to justify a government decision to take private property without payment of just compensation. PLF is championing this fundamental principle of constitutional law in its KAPO and OSF cases.

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