If at first you don’t succeed, change the rules!


Author: Brian T. Hodges

Earlier today, Washington’s Supreme Court granted review of a petition asking whether the Legislature can enact a bill that would operate retroactively to wipe out several years of final judicial decisions.

P1010136 Last year, Pacific Legal Foundation successfully argued that Kitsap County, Wash. failed to comply with the law when its imposed critical area restrictions on all shoreline properties simply because they were close to the shoreline in the case Kitsap Alliance of Property Owners v. Central Washington Growth Management Hearings Board (KAPO), 152 Wn. App. 190, 197-98 (2009). This case is the latest of several appeals challenging Washington’s Growth Management Act’s (GMA) requirement that local government periodically update their critical area regulations regardless of whether an update is needed.

Acting under this update requirement, Kitsap County adopted an ordinance that declared all marine shorelines as potential fish habitat, forcing all shoreline property owners to set aside large portions of their private property as "undisturbed natural vegetation areas" as a condition to obtaining any development permit.

Coming just two years after Washington’s Legislature declared that shorelines could not be deemed critical areas just because they are shorelines, Kitsap County’s ordinance shocked many of its residents (many of whom own homes that are located within the new shoreline buffers). You see, the problem with the County’s regulation was that it was not adopted based on scientific evidence demonstrating that every inch of the County’s shorelines provided the geographic/ecological conditions necessary for fish habitat (the County admitted that it "was not prepared" to do these sorts of studies). Instead, the County justified its decision to regulate all shorelines as critical areas on its notion that, at some point in its life, a fish could pass by any given shoreline and should encounter a pristine, undisturbed environment if it does. The County admitted that its approach took more land than was necessary to protect fish, but explained that its buffers were a precautionary measure that could be fixed at some later date when it actually conducts the studies that it should have done in the first place.

But in 2008, a majority of Washington’s Supreme Court concluded that the GMA required local government to comply with another statute which required the local government to actually conduct site specific studies to justify their shoreline critical area restrictions. Futurewise v. W. Wash. Growth Mgmt. Hearings Bd., 164 Wn.2d 242, 247-48 (2008). The Legislature, however, disagreed and in 2010 adopted Engrossed House Bill 1653 (Chapter 107, 2010 Laws), purporting to retroactively overrule the Supreme Court’s decision in Futurewise so that all judicial decisions made for the past 7 years would be invalid.

The problem with this bill is that our Constitution created separate branches of government. The separation of powers doctrine prohibits the Legislature from applying an amendment retroactively if it contravenes a judicial construction of the statute. Clearly, this is what the Legislature intended when it adopted the bill to overturn Futurewise and KAPO. PLF asked the Supreme Court to take review of this new enactment in order to restrain the Legislature within its Constitutional limits. We are very pleased that the Court has directed Division II of the Court of Appeals to review the constitutionality of this legislation.

For more on this case, please visit PLF's website or its press release.