Washington’s “growth management” approach to regulating land-use adjacent to environmentally sensitive areas relies almost exclusively on presumptions and generalizations—demanding that landowners dedicate oversized buffers based on assumed impacts rather than any actual determination that a proposed development will or will not result in negative impacts. That approach results in a conflict between a landowner’s right to the continued use of his or her property as a traditional shoreline residence (e.g., lawn, home, deck, access to beach) and the government’s desire to put their private property to use as an undisturbed natural vegetation area designed to enhance and restore the environment.
Over the years, PLF has championed the constitutional principal that government cannot compel land dedications as a mandatory condition on permit approvals without first demonstrating that the dedication is necessary to mitigate for some negative impact caused by the proposed development. PLF began writing the latest chapter in this ongoing struggle today, filing a petition for review with Washington’s Supreme Court in Common Sense Alliance v. Growth Management Hearings Board.
The case 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).
The County’s idea is simple—making shoreline property owners bear the burden of solving the region’s storm water runoff problems—but violates unconstitutional conditions doctrine. Together, the “essential nexus” and “rough proportionality” standards of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), 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. The County could not satisfy those tests because its buffers are simply too big.
So, instead of being faithful to the constitution, the County argued that the government does not have to show that a permit condition is calculated to mitigate only for the negative externalities caused by the proposed land use when the government has relied on a scientific report indicating that private property could benefit the public if dedicated to an environmental use. The County’s argument should have been DOA. Indeed, 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. In an unpublished decision, the Court of Appeals agreed with the County and left property owners without the fundamental protections guaranteed by Nollan and Dolan.
PLF’s petition for review argues that the appellate court’s decision 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).
All of the briefs in this appeal are available here.