Made a deal with the devil? Deal with it.
There’s an interesting issue lurking in PLF’s petition for review in Common Sense Alliance v. Growth Management Hearings Board: Is a conservation buffer an interest in real property?
Briefly about the case: Common Sense Alliance involves a challenge to San Juan County’s newly updated critical areas ordinance, which conditions the issuance of new land-use permits on shoreline properties upon the owners’ dedication of a significant portions of their land as conservation areas 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).
As you may have read here, PLF attorney’s have filed a petition arguing that the critical areas ordinance violates the “essential nexus” and “rough proportionality” standards of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), which hold that the government cannot condition approval of a land-use permit on a requirement that the owner dedicate private property to the public, unless the government can show that the dedication is necessary to mitigate impacts caused by the proposed development.
But there’s an interesting question standing in the wings. Is the government demanding a dedication of land to the public when it requires that permit applicants set aside a conservation buffer? Washington’s Court of Appeals said “no” in its decision in this case. But it didn’t provide any reasoning for its conclusion beyond stating that a buffer did not look like a traditional easement—nor could it have done so convincingly, given that it had previously answered the same question in the affirmative in an identical challenge. So, what’s the right answer?
Well, that may take a moment or two to ferret out.
Buffers are unlike traditional servitudes, which transfer a right to use property—like an access easement for a road—to an adjacent property owner. A buffer gives a third party—such as a government body, a conservation group, a railroad, or a utility—a right to restrict on an owner’s ability to use his or her land. When such a right is held by a person or entity that does not own neighboring property, it is called a servitude “with benefits in gross”—meaning that the benefits are not attached to a neighboring parcel. At common law, the ability to create servitudes with benefits in gross was severely limited for a number of reasons, but the growing need for transportation and utility easements that serve individuals and businesses and, later, the need for covenants that serve conservation, preservation, and other governmental purposes led to changes in the law.
Forty-nine states have adopted legislation recognizing that certain types of “in gross” servitudes constitute a valuable interest in real property and can be bought and sold. In Washington, the Legislature enacted a statute expressly recognizing that a conservation buffer is a valuable interest in real property:
A development right, easement, covenant, restriction, or other right, or any interest less than the fee simple, to protect, preserve, maintain, improve, restore, limit the future use of, or conserve for open space purposes, any land or improvement on the land, whether the right or interest be appurtenant or in gross, may be held or acquired by any state agency, federal agency, county, city, town, or metropolitan municipal corporation, nonprofit historic preservation corporation, or nonprofit nature conservancy corporation. Any such right or interest shall constitute and be classified as real property.
Call it a deal with the devil, if you will, but a deal it was. It was the Legislature’s decision to expressly recognize this property right that allows for the creation of enforceable “buffers” in the first place. That means that an entity holding the right to enforce environmental restrictions on another person’s property holds a valuable interest in real property—a lesson already learned by Washington state conservationists who had failed to pay property taxes on open space areas.
As Chief Justice Roberts explained in Horne v. U.S. Dept. of Agriculture, the constitution does not play favorites among the different types of property—a person’s raisins are due the same constitutional protections as a person’s home. Thus, a compelled dedication of a buffer must be treated the same as a dedication of money or land. It must satisfy the strict nexus and proportionality tests; otherwise, the dedication will violate the constitution.
Double-dealing when dabbling with the devil is dubious, no doubt … just deal with it.